United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).
This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.
Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.
The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”
The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.
The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.
Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.
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