IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
October 24, 2012
ALBERT GARLAND, PLAINTIFF AND APPELLANT,
CENTRAL VALLEY REGIONAL WATER QUALITY CONTROL BOARD, DEFENDANT AND RESPONDENT.
APPEAL from a judgment of the Superior Court of Butte County, Stephen E. Benson, Judge. (Super. Ct. No. 149654)
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
This appeal concerns the scope of the government's jurisdiction under the federal Clean Water Act (the Act) to regulate water pollutants. Enacted in 1972, the Act prohibits any person from discharging a pollutant into "navigable waters" --i.e., into "the waters of the United States"--from a "point source" (a discrete conveyance of pollutants) without a permit. (33 U.S.C. §§ 1251 et seq., 1311(a), 1342(a), 1362(7), (12), (14).)*fn1
In Rapanos v. United States (2006) 547 U.S. 715 [165 L.Ed.2d 159] (Rapanos), its most recent decision on the subject, the United States Supreme Court offered three distinct views concerning the Act's jurisdictional scope afforded by the phrase, "the waters of the United States" (§ 1362(7)). As we shall explain, we need not wade into these roiling waters to resolve the matter before us. This is because while the administrative civil liability (ACL) order at issue here is challenged on these jurisdictional grounds, that order is authorized even under the Rapanos view that most narrowly reads the Act's jurisdiction. Consequently, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Albert Garland appeals from a judgment denying a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) brought by him (and his company, Tehama Market Associates, LLC--collectively, Garland).
Garland challenges a $250,000 ACL order issued against him in 2007 by the Central Valley Regional Water Quality Control Board (the Board) for permit violations of the Act in February 2004. The violations encompassed a conservatively estimated 641,000 gallons of sediment-laden stormwater flowing off the north and east sides of a residential subdivision construction site being developed by Garland.*fn2 This flow entered into adjacent ephemeral drainages encompassing swales, ditches, and culverts (and entered into some wetlands as well, not relevant here) that eventually connected to "waters of the United States"--the Feather River and the Thermalito Afterbay--during high rainfall events.
In October 2007, Garland petitioned for a writ of administrative mandate challenging the ACL order.
In 2009, the trial court, in ruling on that petition, (1) rejected Garland's principal argument, concluding that the law and sufficient evidence supported the Board's finding that the ephemeral drainages were "waters of the United States" as tributaries of the Feather River and the Thermalito Afterbay, and (2) rejected Garland's statute of limitations defense, but (3) remanded for further consideration of Garland's laches defense.
In 2010, the trial court, in ruling on a second petition for administrative mandate brought by Garland after the remand, upheld the Board's rejection of Garland's laches claim. Garland timely filed a notice of appeal from this 2010 judgment.*fn3
I. The Issue
Garland contends the Board erroneously concluded that he violated the Act by discharging, without a proper permit, sediment-laden waters into ephemeral drainages adjacent to the construction site, based on the Board's incorrect finding that the drainages themselves were "waters of the United States."
Specifically, Garland argues that for a watercourse to constitute a "water of the United States," the watercourse either must be a "relatively permanent, standing or continuously flowing bod[y] of water" connected to an interstate navigable water (meeting the test of the four-justice plurality opinion of Rapanos, supra, 547 U.S. at pp. 739, 742 [165 L.Ed.2d at pp. 178, 180] (plur. opn. of Scalia, J., joined by Roberts, C. J., Thomas and Alito, JJ.)) or must have a "'significant nexus'" to a navigable water (meeting the test of the result-only concurring opinion in Rapanos from Justice Kennedy (547 U.S. at p. 759 [165 L.Ed.2d at p. 190] (conc. opn.)). There was no evidence before the Board to satisfy either one of these tests.
II. Setting the Legal Stage for the Issue
The stated "objective" of the Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (§ 1251(a).) To that end, the Act provides that "the discharge of any pollutant by any person shall be unlawful" (§ 1311(a)) without a proper permit (§ 1342(a)). The "'discharge of a pollutant'" is defined broadly to include "any addition of any pollutant [including stormwater sediment runoff] to navigable waters from any point source [(a discrete conveyance of pollutants)]." (§ 1362(12), (6) & (14); North Carolina Shellfish Growers Assn. v. Holly Ridge Assocs. (E.D.N.C. 2003) 278 F.Supp.2d 654, 676-677.) And, as most relevant here, the Act defines "'navigable waters'" as "the waters of the United States, including the territorial seas." (§ 1362(7).)
As a regulatory agency under the Act, the Army Corps of Engineers (hereafter, the Corps) has interpreted the statutory phrase "the waters of the United States" to cover all traditionally navigable waters; tributaries of those waters; and wetlands adjacent to those waters or those tributaries. (33 C.F.R. § 328.3(a)(1), (5), (7) (2005); Rapanos, supra, 547 U.S. at pp. 760-761 [165 L.Ed.2d at p. 191] (conc. opn. of Kennedy, J.); see also Rapanos, at p. 792 [165 L.Ed.2d at p. 211] (dis. opn. of Stevens, J., joined by Souter, Ginsberg, and Breyer, JJ.).)
The United States Supreme Court, in a trio of decisions dating from 1985, has itself tackled the interpretation of the statutory phrase, "the waters of the United States":
(1) In United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121 [88 L.Ed.2d 419] (Riverside Bayview), the Supreme Court upheld the Corps' interpretation of "the waters of the United States" as covering wetlands that "actually abut on" traditional navigable waterways. (Id. at p. 135 [88 L.Ed.2d at p. 431].)
(2) In Solid Waste Agency v. Army Corps En. (2001) 531 U.S. 159 [148 L.Ed.2d 576] (Solid Waste Agency v. Corps), the Supreme Court concluded that "the waters of the United States" did not extend to isolated, intrastate seasonal ponds used by migratory birds as habitat. (Id. at pp. 167, 171 [148 L.Ed.2d at pp. 584, 587] (maj. opn. of Rehnquist, C. J.).)
(3) And that brings us to Rapanos, supra, 547 U.S. 715 [165 L.Ed.2d 159] which, in three legally distinct and separate opinions, parted the "waters." The relevant question in Rapanos for our purposes was a question of law: Could wetlands, which lie near ephemeral ditches or man-made drains that eventually empty into traditional navigable waters, constitute "waters of the United States" under the Act? (547 U.S. at p. 729 [165 L.Ed.2d at p. 172] (plur. opn.); see also id. at p. 787 [165 L.Ed.2d at p. 208] (dis. opn.).)
The four-justice dissenting opinion of Justice Stevens in Rapanos answered this question, "Yes." This opinion upheld the Corps' regulatory interpretation of "the waters of the United States" specified above. (Rapanos, supra, 547 U.S. at pp. 787-788, 792 [165 L.Ed.2d at pp. 208-209, 211] (dis. opn.).) Relying on the Act's purpose and the Corps' ecological expertise, this dissenting opinion concluded that these wetlands reasonably could be considered adjacent to tributaries of traditionally navigable waters, and therefore constituted "waters of the United States." (Ibid.)
The four-justice plurality opinion of Justice Scalia in Rapanos answered this question, "No." Applying a dictionary definition of "waters" and expressing skepticism at federal appellate decisions that had interpreted "the waters of the United States" to include "ephemeral channels and drains as 'tributaries'" (citing as one example, among others, Headwaters, Inc. v. Talent Irrigation Dist. (9th Cir. 2001) 243 F.3d 526, 534 ["irrigation ditches and drains that intermittently connect to covered waters" (Rapanos, supra, 547 U.S. at p. 727 [165 L.Ed.2d at p. 170])]), the four-justice plurality opinion concluded, for our purposes: "[T]he phrase 'the waters of the United States' includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] . . . oceans, rivers, [and] lakes.' See Webster's [New International Dictionary (2d ed. 1954)] [p.] 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of . . . 'the waters of the United States' is thus not 'based on a permissible construction of the statute.'" (Rapanos, supra, 547 U.S. at pp. 739, 726-727 [165 L.Ed.2d at pp. 178, 170-171] (plur. opn.); see also id. at pp. 732-733 [165 L.Ed.2d at pp. 173-174] (plur. opn.).)
Finally, the third distinct opinion in Rapanos, the result-only concurring opinion of Justice Kennedy, answered this question, "Maybe." Noting Solid Waste Agency v. Corps' observation that "[i]t was the significant nexus between the wetlands and 'navigable waters' that informed our reading of [the Act] in Riverside Bayview," Justice Kennedy adopted this nexus standard as the guiding criterion in applying the statutory phrase "the waters of the United States" to wetlands and to tributaries. (Rapanos, supra, 547 U.S. at p. 767 [165 L.Ed.2d at p. 195] (conc. opn.); see Solid Waste Agency v. Corps, supra, 531 U.S. at p. 167 [148 L.Ed.2d at p. 585].)
III. Disposing of the Issue
As noted, Garland contends there was insufficient evidence that the ephemeral drainages here constituted "waters of the United States" under either Justice Scalia's plurality test in Rapanos (a relatively permanent body of water connected to traditional interstate navigable waters) or Justice Kennedy's concurrence test (significant nexus to navigable water), and therefore, there was no jurisdictional basis on which to impose the ACL order against him (including his company).
As we shall explain, we can sidestep this issue because the Board imposed the ACL order against Garland on an alternative basis (to whether the ephemeral drainages themselves constituted "waters of the United States"), and this alternative basis finds jurisdictional support even under the Rapanos opinion that most restrictively reads the Act's jurisdiction (i.e., the four-justice plurality opinion of Justice Scalia).
In issuing the ACL order against Garland, the Board indeed found that the ephemeral drainages--into which Garland discharged the construction site stormwater runoff--were tributaries to downstream navigable waters; and therefore, these drainages themselves constituted "waters of the United States."
However, the Board also provided "[a]n alternative rationale" for issuing the ACL order against Garland. Said the Board, "An alternative rationale is also available to demonstrate that a [pollutant] discharge [under the Act] occurred even if the pollutants [did] not directly enter waters of the United States. Were the receiving waters abutting the site [i.e., the ephemeral drainages] not waters of the United States . . . , a violation [of the Act could] still [have] occur[red] if the pollutants indirectly discharge[d] to waters of the United States [(citing in support the four-justice plurality opinion of Justice Scalia in Rapanos)]."
The Board's alternative rationale for issuing the ACL order against Garland is, pardon the expression, on solid ground. Whatever else may be said of the three legally distinct opinions in Rapanos, this much is clear: The four-justice plurality opinion of Justice Scalia took the narrowest view of the Act's jurisdiction (Rapanos, supra, 547 U.S. at pp. 746, 756 [165 L.Ed.2d at pp. 182, 188 (plur. opn.)); the four-justice dissenting opinion of Justice Stevens took the broadest (547 U.S. at pp. 808-809, 810, fn. 14 [165 L.Ed.2d at pp. 221, 223, fn. 14] (dis. opn.)); and the result-only concurring opinion of Justice Kennedy landed somewhere in between (547 U.S. 759 [165 L.Ed.2d 190] (conc. opn.)). But that narrowest of jurisdictional views, the plurality opinion in Rapanos, explained the effect of its opinion on the Act's regulation of water pollutant discharge, an explanation directly relevant to the issue we face here. That explanation follows.
The Rapanos plurality first set the backdrop:
"Respondents[, i.e., the parties in Rapanos that argued the Act applied] and their amici urge that [the plurality's] restrictions on the scope of 'navigable waters'[, i.e., the plurality's narrow reading of 'the waters of the United States'] will frustrate enforcement against traditional water polluters under [sections] 1311 and 1342 [the sections of the Act prohibiting the discharge of a pollutant into the waters of the United States from a point source without a permit--i.e., the sections at issue in the present opinion]. . . . [R]espondents contend that water polluters will be able to evade the permitting requirement of [section] 1342(a) simply by discharging their pollutants into non-covered intermittent watercourses that lie upstream of covered waters." (Rapanos, supra, 547 U.S. at pp. 742-743 [165 L.Ed.2d at p. 180] (plur. opn.).)
Then the plurality answered this contention:
"That is not so. Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of [section] 1342, inasmuch as lower courts applying [section] 1342 have not characterized intermittent channels as 'waters of the United States.' The Act does not forbid the 'addition of any pollutant directly to navigable waters from any point source,' but rather the 'addition of any pollutant to navigable waters.' § 1362(12)(A) (emphasis added); § 1311(a). Thus, from the time of the [Act's] enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates [section] 1311(a) [water pollutant discharge], even if the pollutants discharged from a point source do not emit 'directly into' covered waters, but pass 'through conveyances' in between. United States v. Velsicol Chemical Corp., 438 F.Supp. 945, 946-947 (WD Tenn. 1976) (a municipal sewer system separated the 'point source' and covered navigable waters). See also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137, 1141 ([10th Cir.] 2005) (2.5 miles of tunnel separated the 'point source' and 'navigable waters')." (Rapanos, supra, 547 U.S. at p. 743 [165 L.Ed.2d at p. 180] (plur. opn.).)
The Rapanos plurality then continued:
"In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute 'point sources' under the Act. The definition of 'point source' includes 'any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.' 33 U.S.C. § 1362(14). We have held that the Act 'makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to "navigable waters."' South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 105, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). . . . Some courts have even adopted both the 'indirect discharge' rationale and the 'point source' rationale in the alternative, applied to the same facts. [Citation.] On either view, however, the lower courts have seen no need to classify the intervening conduits as 'waters of the United States.' [¶] . . . It does not appear, therefore, that the interpretation [the plurality] adopt[s] today significantly reduces the [pollutant discharge-permitting] scope of [section] 1342." (Rapanos, supra, 547 U.S. at pp. 743-744 [165 L.Ed.2d at pp. 180-181] (plur. opn.).)
The Rapanos plurality also addressed a further concern regarding its narrow interpretation of the Act's jurisdiction:
"Respondents also urge that the narrower interpretation of 'waters' will impose a more difficult burden of proof in enforcement proceedings under [sections] 1311(a) and 1342(a) [again, the sections at issue in the present opinion], by requiring the [relevant administrative] agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional 'waters.' . . . But, as noted above, the lower courts do not generally rely on characterization of intervening channels as 'waters of the United States' in applying [section] 1311 to the traditional pollutants subject to [section] 1342. Moreover, the proof of downstream flow of pollutants required under [section] 1342 [can be satisfied by the presence of] a hydrologic connection . . . . See [United States v. Rapanos (6th Cir. 2004)] 376 F.3d[ 629,] 639 [vacated and cause remanded sub nom. Rapanos v. United States (2006) 547 U.S. 715 [165 L.Ed.2d 159]]. [For example,] . . . testimony of hydrologic connections based on observation of surface water connections [or] . . . testimony of discharges based on observation of the flow of polluted water[.] In either case, the agency must prove that the contaminant-laden waters ultimately reach covered waters." (Rapanos, supra, 547 U.S. at p. 745 [165 L.Ed.2d at pp. 181-182] (plur. opn.).)
The "solid ground" we spoke of earlier supporting the Board's alternative rationale for issuing the ACL order against Garland--i.e., the rationale of discharging pollutants, without a proper permit, into non-"waters of the United States" that eventually connect with a traditional navigable water, sections 1311 and 1342--is based not only on the Rapanos opinion that reads the Act's jurisdiction in the narrowest way (the plurality opinion), but also on the following three observations.
First, the Rapanos plurality opinion's phrasing of "any pollutant that naturally washes downstream" does not foreclose the Act from applying to a downstream wash through man-made conveyances, given the language and examples the plurality itself sets forth in conjunction with this phrasing. (Rapanos, supra, 547 U.S. at p. 743 [165 L.Ed.2d at p. 180] (plur. opn.).)
Second, Garland makes no effort in his reply brief to respond to the Board's argument (in its respondent's brief) of this alternative rationale. In its respondent's brief, the Board argued that "regardless of whether the [ephemeral] drainages at issue in this case themselves constitute waters of the United States, Garland remains liable for discharging pollutants into waters of the United States under the alternative [rationale for the ACL order] that the discharge travelled through point sources to waters of the United States."
Third, and finally, Garland apparently made no effort to counter the Board's argument regarding the ACL order's alternative rationale, given Garland's following highlighted concession in characterizing the issue on appeal, at the outset of his opening brief: "At issue in this appeal is whether ephemeral drainage swales, ditches, and culverts can be found to be 'waters of the United States' governed by the federal Clean Water Act, based on nothing more than a finding that the drainages eventually connect with a navigable waterway during high rain[fall] events."*fn4 (Italics added.)
We conclude the Board acted properly in issuing the ACL order against Garland.
The judgment is affirmed. The Board is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).) (CERTIFIED FOR PUBLICATION.)
We concur: RAYE , P. J. MAURO , J.