SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION
The Ninth Circuit Court of Appeals today released an opinion in SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION, No. 04-17554, a federal appeal. The panel consisted of William C. Canby, Jr., Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.
CANBY, Circuit Judge:
San Francisco Baykeeper and Citizens Committee to Complete the Refuge (collectively “Baykeeper”) filed this citizen suit under the Clean Water Act, 33 U.S.C. ยง 1251 et seq., (”CWA” or “the Act”) against Cargill Salt Division and Cargill, Incorporated (collectively “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 this appeal. 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. Background Cargill and its predecessors have conducted salt-making operations at the edge of San Francisco Bay, in Alameda County, California, since the 1860’s. In 1979, the United States acquired some 15,000 acres of Cargill’s lands for inclusion in the Don Edwards San Francisco Bay Wildlife Refuge (”the Refuge”). Cargill retained an easement over 12,000 acres that permits it to continue its salt-making operation. Cargill produces salt by evaporating water from the Bay in a series of ponds. The harvesting and refinement of the salt . . .