Stockwater Pond Exemption From CWA Permit Requirement May Apply.

The plaintiff raises cattle and other livestock and wanted to build a stockwatering pond on his property.  In March of 2012, the plaintiff applied to the U.S. Army Corps of Engineers (Corps) for a permit to build an earthen dam on his property across a creek.  Due to delays in the permit approval process,  the plaintiff built the dam before receiving permit approval.  The Corps concluded that the creek was a relatively permanent stream which flowed into a non-navigable watercourse at that point, but which became navigable further downstream and eventually flowed into a lake.  The court determined that the Corps' conclusion that it had jurisdiction over the creek under the Clean Water Act was not arbitrary, capricious or contrary to law under the Supreme Court's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).  The court noted that the evidence showed that the creek flowed throughout the year.  However, the court also noted that no fill permit was necessary if the dam was built for the purpose of constructing a stock pond (33 U.S.C. Sec. 1344(f)(1)(C)).  However, the exemption does not apply, the court noted, if building the dam would bring an area of the creek into a use to which it was not previously subject (the "recapture" provision) where the flow or circulation of the water may be impaired or the reach of the waters reduced.  Because the plaintiff pleaded the Clean Water Act exemptions as an affirmative defense, the court's holding that the plaintiff was not entitled to judgment as a matter of law about the stock-pond exemption on the administrative record was without prejudice and a deadline of June 19, 2015 was established  for a motion seeking judgment on the pleadings on the plaintiff's remaining constitutional claims.  Eoff v. Environmental Protection Agency, No. 4:13-cv-368-DPM, 2015 U.S. Dist. LEXIS 65379 (E.D. Ark. May 19, 2015).