The opinion of the court was delivered by: WARE
JAMES WARE, UNITED STATES DISTRICT JUDGE
Plaintiff and defendants cross-move for summary judgment. Good cause appearing therefor, plaintiff's motion for summary judgment is granted, and defendants' motion for summary judgment is denied. The Court will hold a further hearing to consider the appropriate penalty.
Defendants own property located on the east side of State Highway 152 about 13 miles east of Gilroy, in Santa Clara County, California. Defendants operate a business on the property called "Casa de Fruta."
Pacheco Creek flows through defendants' property for several thousand feet and then, as defendants' land ownership becomes narrower, the Creek flows along the eastern boundary of their property and separates it from the adjoining property to the east, the Cribari property. Declaration of John H. Eft, para. 2, attached to Plaintiff's Summary Judgment Motion ("Eft Decl.").
Pacheco Creek is an intermittent stream. Given adequate rainfall, Pacheco Creek runs into San Felipe Lake and, when the lake fills, Pacheco Creek flows into the Pajaro River. The Pajaro River empties into the Pacific Ocean at Monterey Bay. Declaration of Jerry J. Smith, para. 6, attached to Plaintiff's Summary Judgment Motion ("Smith Decl.").
Steelhead trout, which live as adults in the Pacific Ocean, migrate from the Pacific Ocean up the Pajaro River and then up Pacheco Creek, to and beyond Casa de Fruta, to spawn. Juvenile steelhead spend their first year in the creek and then migrate out to the ocean. The Pacheco Creek watershed has also supported some commercial fishing. Carp and blackfish have been fished for commercially in San Felipe Lake on Pacheco Creek, a few miles upstream from where Pacheco Creek joins the Pajaro River. Smith Decl., paras. 5, 6, 7, 10.
In April 1982, defendants purchased approximately 79 acres of land from the landowner immediately to the north. Pacheco Creek runs through that parcel. In 1980 or 1981, prior to the acquisition of the 79 acre parcel, defendants began to modify the creek on that parcel. Declaration of Joseph Zanger, at 34-36. Defendants continued to modify this portion of the creek up to the time that the instant complaint was filed. See, generally, Eft Decl. Defendants have substantially changed a 2,100 foot section of the creek from a wide, meandering watercourse where the creek bed measured 800 feet at its widest point, to a trapezoidal channel or trench of an almost uniform width of 160 feet, and they have filled in the former creek bed outside the man-made channel to the extent that eight of the original 14 acres of the creek bed in this section are filled. Declaration of Joan Florsheim, para. 4, attached to Plaintiff's Summary Judgment Motion. The former creek bed is used for ball fields, parking and other improvements at Casa de Fruta. Eft Decl., para. 3. Defendants do not contest that they changed the course of the waterway, but rather contend that they were merely "putting the channel flowline substantially back into its former historical location to eliminate a nasty recurring flooding problem." Defendants' Memorandum in Support of Summary Judgment at 2. Further, defendants state that it is immaterial under 33 U.S.C. § 1311(a) "what the resultant configuration of a flood control project ends up at. The issue is whether in the process a pollutant is discharged into waters of the United States. . . ." Defendants' Supplement to Response to United States' Summary Judgment Motion at 2.
Defendants never obtained a work permit from the Army Corps of Engineers. When the Corps learned in 1983 that defendants had performed unauthorized work, it issued a Cease and Desist Order. It issued a second Order in 1986 after discovering more recent work. Eft Decl., paras. 3, 4, 6, 10. Defendants admit that they had no permit from the Corps, but allege that no permit was required because: (1) they did not discharge a pollutant; (2) the work was exempt under the Code; and (3) a pre-existing 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 ...