Summary of a Recent
Judicial Development in
Clean Water Act

Court's Construction of a Statutory Provision May Not Be Substituted
for a Reasonable Interpretation by a Federal Agency

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700 (9th Cir. 2007), the United States Ninth Circuit Court of Appeals reversed the decision of the district court, which had entered summary judgment in favor of an environmental organization. The organization brought action against a salt producer pursuant to the citizen suit provision of the Clean Water Act (CWA). After the entry of judgment, the salt producer appealed to the instant court, and the organization cross-appealed. The court reversed, holding that the body of water at issue was not regulable under the CWA.

Background

The defendant conducted salt-making activities on land located near San Francisco Bay. Id. at 701. In 1979, the United States acquired some of the defendant's land to add to the Don Edwards San Francisco Bay Wildlife Refuge. Id. The defendant retained an easement over the land to continue making salt. Id. Salt-making necessitates use of waste containment facilities to dispose of salt-processing residue. Id. The defendant's waste containment facility drained into a non-navigable pond, which was separated from the Mowry Slough (a "water of the United States") by an earthen levee. Id. The record showed that at high tide the "slough water inundate[d] the wetlands up to the levee and ha[d], on some occasions, overtopped the levee and flowed into the pond." Id. On occasion, the defendant pumped wastewater from the pond to keep it from approaching the top of the levee. Id. In 1996, the plaintiff filed suit against the defendant alleging violations of the CWA stemming from "unpermitted discharge of pollution into 'waters of the United States.'" Id. at 702-03. The plaintiff moved for summary judgment arguing that the pond was a water of the United States since it was adjacent to the slough. Id. at 703. Opposing the motion, the defendant argued that under the CWA regulations at issue, "adjacency provide[d] a basis for CWA coverage only in the case of wetlands." Id. The court granted the plaintiff's motion, "determining that "bodies of water . . . adjacent to navigable waters [were] 'waters of the United States' and [were] therefore protected under the Clean Water Act." Id. After both parties entered into a settlement agreement, the defendant appealed. Id.

Arguments

The plaintiff argued that the pond was a "water of the United States" because it was adjacent to Mowry Slough. Id.

The defendant argued that "under controlling regulations, adjacency provide[d] a basis for CWA coverage only in the case of wetlands." Id.

Analysis and Holdings

The CWA defines "wetlands" as "'areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.'" Id. at 705 (quoting 40 C.F.R. § 122.2). After examining this definition as well as the definition of "tributaries" and "non-navigable waterbodies whose use or misuse could affect interstate commerce," the court observed that "the only areas . . . defined as waters of the United States by reason of adjacency to other such waters are 'wetlands.'" Id. For this reason, the court held that the district court's determination "that the pond [was] covered by the [CWA] because 'the same characteristics that justify protection of adjacent wetlands . . . apply as well to adjacent ponds'" was improper. Id. Additionally, the court stated that "[w]hen legislation implicitly grants to an agency the authority to elucidate the meaning of a statutory provision, 'a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.'" Id. (quoting Chevron, USA Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984)).

The case was decided on March 8, 2007.