• Jennifer Heywood

Federal Court Holds Man-made Canal with Intermittent Flow Subject to Clean Water Act Jurisdiction

The Federal District Court for the District of Idaho, on March 17, 2011, held that a man-made canal, without an interstate connection, and with only seasonal flow falls within the U.S. Army Corps of Engineers’ jurisdiction under Section 404 of the Clean Water Act. U.S. v. Vierstra, 2011 WL 1064526 (D. Idaho 2011). The defendant, charged with criminal wrongdoing, allegedly discharged process wastewater from a concentrated animal feeding operation into the Low-Line Canal. The canal carries water during an 8-month irrigation season, but is generally otherwise dry. In the face of a motion to dismiss for lack of subject matter jurisdiction, the court found the Government’s allegations, if proven, would support a finding that the Low Line Canal is a non-navigable tributary eventually discharging water into a navigable “water of the United States,” a prerequisite for jurisdiction under the Clean Water Act. The court found the Low Line Canal is part of a continuous channel with a distinct, open, and direct surface water connection to and from navigable waters for six to eight months out of the year. Accordingly, the court found the Low-Line Canal met both the “relatively permanent” and “significant nexus” standards set forth in the plurality and concurrent decisions set forth inRapanos v. United States, 547 U.S. 715 (2006). Discharges into the canal, including those occurring when the canal was dry, could violate the Clean Water Act.

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