Yesterday, the Ninth Circuit Court of Appeals ruled in San Francisco Baykeeper v. Cargill Salt Division that CWA "adjacency" jurisdiction extends only to adjacent wetlands and not, as was the case in Baykeeper, to a wastewater collection pond adjacent to a "water of the United States." PLF filed an amicus brief in the case. The Ninth Circuit reasoned that, because the pertinent regulation expressly allows for jurisdiction over wetlands that are adjacent to waters of the United States, by necessary implication the regulation does not allow for jurisdiction over adjacent non-wetlands, at least on the basis of their adjacency alone. The ruling provides some solace to property owners, but uncertainty remains. According to Sacramento, Calif., attorney Greg Broderick, former PLF attorney who authored PLF's amicus brief, "it's hard to tell whether your wetlands are subject to the regs or not [because] if one molecule of water can theoretically get from your property to a navigable water through the ground over the course of 100 years, through a stream to a river leading to a navigable water, then you're hosed." Although Baykeeper involves only the interpretation of a federal regulation, and not the statutory or constitutional limits of Army Corps and EPA authority, the case nevertheless represents an important victory for federalism and a balanced approach to environmental regulation.
