San Francisco Baykeeper v. Cargill Salt Division

Mar 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 04-17554, 05-15051. Other amici curiae involved in the case include: Pacific Legal Foundation, National Wildlife Federation, National Association of Home Builders and the U.S. Department of Justice, Environment & Natural Resources Division.

San Francisco Baykeeper and Citizens Committee to Complete the Refuge (collectively Baykeeper) filed a citizen suit under the Clean Water Act (CWA) against Cargill Salt Division and Cargill, Incorporated (Cargill). Baykeeper alleged that Cargill discharged pollutants into “waters of the United States” without a permit. The body of water into which Cargill allegedly discharged waste is a non-navigable, intrastate pond (the Pond), not determined to be a “wetland,” that collects polluted runoff within Cargill’s waste containment facility located near the southeastern edge of San Francisco Bay.

The district court granted summary judgment in favor of Baykeeper after determining that the Pond qualifies as a “water of the United States” because it is adjacent to a protected water of the United States (Mowry Slough). Cargill then brought the appeal. The Appeals Court said, "Because we conclude that mere adjacency provides a basis for CWA coverage only when the relevant waterbody is a 'wetland,' and no other reason for CWA coverage of Cargill’s Pond is supported by evidence or is properly before us, we reverse the district court’s summary judgment."

In further discussing the case relation to the Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States, 126 S. Ct. 2208 (2006); the Appeals Court said, "We conclude, therefore, that nothing in Bayview, SWANCC or Rapanos requires or supports the view that Cargill’s Pond is a water of the United States because it is adjacent to Mowry Slough. Baykeeper contends, however, that the Pond is more than merely adjacent; it has a nexus to Mowry Slough. It is not sufficient, however, for Baykeeper simply to make its individual case; it must establish that it was unreasonable for the EPA to confine to wetlands the CWA’s reach to non-navigable waterbodies adjacent to protected waters. Even on its own terms, however, Baykeeper’s argument fails. The evidence in support of Baykeeper’s nexus falls far short of the nexus that Justice Kennedy required in Rapanos even for wetlands that the Corps sought to hold subject to the CWA..."

The Appeals Court noted further, "In short, the 'Adjacent Waters Theory upon which the District Court based its Jurisdictional Ruling' does not rely on evidence of tributary status or effect on interstate commerce. Accordingly, we conclude that these alternative theories are independent of the 'Adjacent Waters Theory' and are waived."

The National Association of Home Builders (NAHB), an amicus party in the case, issued a release that "cheered the decision." NAHB President Brian Catalde said, “These regulatory burdens translate into expenses that increase the price of homes. We need to stop this bureaucratic expansion on behalf of our home buyers... We should all want the same thing: protection for the nation’s water supply. But the rules about how to achieve that need to be clear, for the sake of all of us. Let’s keep our environmental regulations strong, but make them sensible. Make them consistent. Our nation’s home builders – and our nation’s home buyers – deserve no less.”

Access the complete opinion (click here). Access the NAHB release (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]