Another federal court rules on federal jurisdiction over isolated wetlands

March 8, 2007 | Roger McEowen


For purposes of Clean Water Act (CWA), the federal government has jurisdiction over “waters of the United States.” Under the CWA, a permit is required before a “pollutant” can be discharged into such waters.The definition of “pollutant” is very broad, as is the definition of “waters of the United States.” In 2001, the U.S. Supreme Court ruled that the federal government had no regulatory authority over isolated wetlands that did not have a substantive connection to interstate commerce. That had the effect of removing federal jurisdiction over private ponds and seasonal or ephemeral waters were the only connection with interstate commerce is migratory waterfowl. But, later court opinions have indicated that other factors are relevant in determining whether the federal government can regulate isolated water where the potential connection with interstate waters is more than migratory waterfowl.  In any event, federal jurisdiction over open waters that ultimately flow into interstate waters or waters that are navigable-in-fact still exists.The key question in any particular case was whether the isolated wetland had a sufficient connection with “waters of the United States” to be subject to the permit requirement of Section 404 of the CWA. 

In this case, Cargill was sued for allegedly discharging pollutants into “waters of the United States” without a permit.The isolated water body at issue is a non-navigable, intrastate pond which, by itself, is not a regulable wetland. The pond collects runoff within Cargill’s waste containment facility at its salt-making operations located near the edge of San Francisco Bay. The pond is adjacent to a slough that is a protected “water of the United States.”  The slough is a tributary to other protected waters. The pond is separated from the slough by a berm which regularly leaked during high tide.  The trial court ruled that the pond qualified as a “water of the United States” due to the adjacency to the protected waters. However, the appellate court reversed.  The court pointed out that mere adjacency provides a basis for CWA coverage only when the relevant waterbody is itself a “wetland.”  San Francisco Baykeeper, et al. v. Cargill, Nos. 04-17554, 05-15051, 2007 U.S. App. LEXIS 5442 (9th Cir. Mar. 8, 2007).