By Kate J. Hart
In the recent case of San Francisco Baykeeper v. Cargill Salt Division (March 8, 2007) 2007 U.S.App.Lexis 5442, Baykeeper sued Cargill under the citizen suit provision of the Clean Water Act alleging that Cargill unlawfully discharged waste from its salt production operation into the “waters of the United States” without the proper permits. The body of water at issue was a non-navigable, intrastate pond (“Pond”), which was not a wetland, but that was located adjacent to the Mowry Slough (“Slough”) which is a water of the U.S. Baykeeper never argued that the Pond was a wetland, but instead argued that the Pond’s adjacency to the Slough provided a basis for CWA coverage. There was no evidence that the CWA would otherwise apply. In this case, the Ninth Circuit held that the adjacency of a non-navigable water body to a water of the U.S. does not, by itself, trigger the application of the CWA.
The court reasoned that Congress delegated policymaking authority with respect to the CWA jointly to the EPA and the Army Corps of Engineers. EPA regulations state that the only areas defined as waters of the U.S. by reason of adjacency are wetlands. Adjacent waters like the Pond are not included. In determining that EPA and Corps regulations were not unreasonable, the Ninth Circuit properly deferred to them on the definition of what constitutes waters of the U. S.
Baykeeper argued that the Supreme Court has consistently found that the CWA protects all water bodies with a significant nexus to navigable waters. The court disagreed and said,
The Supreme Court’s opinion [in U.S. v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121] leaves little doubt about two of its foundations: (1) that it is up to the Corps to determine where ‘waters of the United States’ end, and (2) that the Corps’ regulation was reasonable in treating adjacent wetlands as a unique category subject to the CWA despite their non-navigability.
The court also reminded us that 16 years after Bayside, the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) 531 U.S. 159 invalidated the Migratory Bird Rule, “noting that isolated intrastate ponds, unlike wetlands, lack a significant nexus to navigable waters.” Although Baykeeper relied upon Riverside Bayview, SWANCC and the recent case Rapanos v. U.S. (2006) 126 S.Ct. 2208, the court held that this reliance was misplaced. The court said that nothing in these cases “requires or supports the view that Cargill’s Pond is a water of the United States because it is adjacent to Mowry Slough.” The court also noted that Baykeeper’s evidence in support of a nexus between the Pond and the Slough even fell short of the Rapanos test for wetlands, because there was no showing that any water had ever flowed from the Pond to the Slough.
Baykeeper’s effort to expand the CWA to non-jurisdictional waters was unsuccessful, and it reemphasizes an important point: just because a body of water is adjacent to waters of the U.S. does not mean the body of water is itself covered by the CWA.
Kate Hart is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.