Appel
United States v. Appel
Opinion
Lead Opinion
MEMORANDUM *
F. John Appel appeals the district court’s judgment approving the ordinary high water mark methodology used by the Environmental Protection Agency (“EPA”) to set the jurisdictional boundaries, under the Clean Water Act, of the Ventura River as it traverses his property. See 33 U.S.C. §§ 1311 (a), 1362(7); 33 C.F.R. §§ 328.3 (e), 328.4(c). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.
A. Flood Flows and the Lateral Extent of the River
The district court did not err in fixing the jurisdictional boundaries of the Ventura River (“the River”). Under EPA regulations, federal jurisdiction over non-tidal waters, in the absence of adjacent wetlands, extends to the ordinary high water mark (“OHWM”). 33 C.F.R. § 328.4 (c)(1). The OHWM is:
33 C.F.R. § 328.3 (e). It “is placed there, as the name implies, from the ordinary flow of the river and does not extend to the peak flow or flood stage so as to include overflow on the flood plain....” United States v. Claridge, 416 F.2d 933, 934 (9th Cir.1969).
Contrary to Appel’s assertions, the district court did not rely upon “flood flows” in making its OHWM determination. Rather, the court based its assessment on…