Ninth Circuit Reaffirms the Expansive Interpretation of “Navigable Waterways of the U.S.” Under the CWA

Dec 28, 2017

The court rejected the defendant’s claim he was unaware of the scope of the Act.

The vastly expanded interpretation of what constitutes “navigable waterways of the United States” under the Clean Water Act (CWA) is often cited as an example of government overreach.

An article in Gravel 2 Gavel by Anthony B. Cavender discusses a recent U. S. Court of Appeals for the Ninth Circuit decision that addresses the issue of criminal liability under the current United States Environmental Protection Agency (EPA) interpretation of the CWA.

“The Ninth Circuit unanimously affirmed the defendant’s criminal convictions for knowingly discharging dredged or fill material from a point source into a ‘water of the United States’ on private property without a permit.”

During construction of ponds in Montana, the defendant dumped both dredged and fill material “into the surrounding wetlands and an adjacent creek, which was a tributary flowing into other tributaries which finally flowed in the Boulder River, a traditional navigable waterway of the United States.”

The defendant argued that the government’s interpretation of “navigable waterways” was too broad and that he did not have “fair warning of the scope of CWA jurisdiction.”

The Ninth Circuit cited precedent from the Supreme Court decision Rapanos v. U.S. upholding that the EPA’s expanded interpretation of “waterways of the U.S.” The Court also acknowledged it is often difficult for a “layman of normal intelligence” to discern what constitutes these waterways.

In this case, however, the government demonstrated that the EPA notified the defendant he needed to obtain a permit before beginning his project.

Based upon this evidence, the Ninth Circuit upheld the lower court’s ruling that the defendant had fair warning his actions were criminal.


Ninth Circuit Confirms That Defendant Had Fair Warning That His Conduct Violated The CWA, Anthony B. Cavendeer, Gravel2Gavel, Nov. 30, 2017.