general permit from the Corps authorized their work at all times.
III. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper when the pleadings and discovery, read in the light most favorable to the non-moving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.; see Allstate Ins. Co. v. Gilbert, 852 F.2d 449, 451 (9th Cir. 1988).
In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Electrical Service, Inc. v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The opposing party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Mere disagreement or the bald assertion that there is a genuine issue of material fact is not enough to defeat a summary judgment motion. Id.
IV. THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
The Clean Water Act ("Act") prohibits the discharge of any dredged or fill material into "navigable waters" unless authorized by a permit issued by the Corps pursuant to § 404 of the Act, 33 U.S.C. § 1344. Plaintiff argues that Pacheco Creek constitutes "waters of the United States," and that defendants discharged fill into Pacheco Creek without a § 404 permit. To establish a violation, the United States need only show (a) that it has jurisdiction over the subject waters, (b) that the defendants discharged or placed fill in those waters, and (c) that the defendants did so without a permit from the Corps.
Defendants argue that summary judgment should be granted in their favor, because they did not violate §§ 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1344. Their first argument is that § 301 prohibits the discharge of a "pollutant" and they have not discharged any "pollutant." Their second argument is that even if they have discharge a "pollutant," their work fell within an exception under § 404(f) of the Act, or within one of the exceptions under the Corps' regulations. Their third argument is that a pre-existing general permit from the Corps authorized their work at all times.
A. The United States Has Jurisdiction of Pacheco Creek Under the Clean Water Act
Section 301 of the Clean Water Act, 33 U.S.C. § 1311, provides that the discharge of any pollutant by any person shall be unlawful, except in compliance with § 404 of the Act, 33 U.S.C. § 1344, and other sections. Section 404(a) provides that the Secretary of the Army may issue permits for the discharge of dredged or fill material into the "navigable waters" at specified disposal sites. The term "navigable waters" is defined in § 502 of the Act, 33 U.S.C. § 1362, as "waters of the United States, including the territorial seas." See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985). Congress intended that the term "waters of the United States" be interpreted as broadly as constitutionally possible under the commerce clause. See, Leslie Salt Co. v. Froehlke, 578 F.2d 742, 753-55 (9th Cir. 1978); United States v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974). The Corps promulgated regulations which defined the term "waters of the United States" broadly. 33 C.F.R. § 328.3.
Pacheco Creek is undoubtedly one of the "waters of the United States." Pacheco Creek and the Pajaro River fall within the scope of 33 C.F.R. § 328.3(a)(3) in that their "use, degradation or destruction" could affect interstate commerce in that they (i) are used or could be used by interstate or foreign travelers for "recreational" purposes (e.g., fishing, bathing, drinking) and (ii) fish "are or could be taken and sold in interstate or foreign commerce" from either of them. Steelhead trout can be taken from the creek, and commercial fishing has occurred on the creek. Smith Decl., paras. 5, 6. Although Pacheco Creek is a "water of the United States" in its own right, it is also a tributary of other "waters of the United States," and thus covered under the regulations. 33 C.F.R. § 328.3(a)(5). Pacheco Creek is a tributary of the Pajaro River, and both the creek and the river are tributary to Monterey Bay and the Pacific Ocean.
Defendants have not argued that Pacheco Creek is not one of the "waters of the United States."
B. Defendants Discharged Fill Material in Pacheco Creek
Section 301 of the Clean Water Act, 33 U.S.C. § 1311, provides that the discharge of any pollutant by any person shall be unlawful, except in compliance with § 404 of the Act, 33 U.S.C. § 1344, and other sections.
Section 301(a), 33 U.S.C. § 1311(a) [the statute under which defendants are charged], provides as follows:
Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. (Emphasis added.)
Section 404(a), 33 U.S.C. § 1344, provides, in pertinent part, as follows:
The Secretary may issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the navigable waters at specified disposal sites. (Emphasis added.)