ELR Citation: 42 ELR 20225
No(s). C067130 (Cal. Ct. App. 3d Dist. Oct 24, 2012)

A California appellate court upheld a local water board's $250,000 administrative civil liability order issued against a developer for CWA permit violations. The board issued the order after concluding that the developer discharged sediment-laden waters into ephemeral drainages adjacent to a construction site. The developer argued there was insufficient evidence that the ephemeral drainages constituted "waters of the United States" under either Justice Scalia's plurality test or Justice Kennedy's significant nexus test in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006). But the board also provided an alternative basis for issuing the order—discharging pollutants without a proper permit into non-waters of the United States that eventually connect with a traditional navigable water. This alternative rationale finds jurisdictional support even under the narrowest reading of Rapanos (i.e., the plurality opinion of Justice Scalia).