San Francisco Baykeeper v. Cargill Salt Division

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAN FRANCISCO BAYKEEPER; 

CITIZENS COMMITTEE TO

COMPLETE THE REFUGE; MICHAEL R.

LOZEAU, No. 04-17554

Plaintiffs-Appellees,

 D.C. No.

v. CV-96-02161-SI

CARGILL SALT DIVISION; CARGILL

INC.,

Defendants-Appellants.



SAN FRANCISCO BAYKEEPER; 

CITIZENS COMMITTEE TO

COMPLETE THE REFUGE,

Plaintiffs-Appellants,

No. 05-15051

and

MICHAEL R. LOZEAU,  D.C. No.

CV-96-02161-SI

Plaintiff,

OPINION

v.

CARGILL SALT DIVISION; CARGILL

INC.,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Susan Yvonne Illston, District Judge, Presiding

Argued and Submitted

September 27, 2006—San Francisco, California

2665

2666 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

Filed March 8, 2007

Before: William C. Canby, Jr., Michael Daly Hawkins, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Canby

2668 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

COUNSEL

John F. Barg, Barg, Coffin, Lewis & Trapp, LLP, San Fran-

cisco, California, for the defendants-appellants-cross-

appellees.

Daniel Purcell, Keker & Van Nest, LLP, San Francisco, Cali-

fornia, for the plaintiffs-appellees-cross-appellants.

Gregory T. Broderick, Pacific Legal Foundation, Sacramento,

California; Scott M. DuBoff, Wright & Talisman, PC, Wash-

ington, D.C.; Virginia S. Albrecht, Hunton & Williams, LLP,

Washington, D.C.; James Murphy, National Wildlife Federa-

tion, Montpelier, Vermont; Katherine J. Barton, United States

Department of Justice, Environment & Natural Resources

Division, Washington, D.C., for the amici curiae.

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2669

OPINION

CANBY, Circuit Judge:

San Francisco Baykeeper and Citizens Committee to Com-

plete the Refuge (collectively “Baykeeper”) filed this citizen

suit under the Clean Water Act, 33 U.S.C. § 1251 et seq.,

(“CWA” or “the Act”) against Cargill Salt Division and Car-

gill, Incorporated (collectively “Cargill”). Baykeeper alleged

that Cargill discharged pollutants into “waters of the United

States” without a permit. The body of water into which Car-

gill allegedly discharged waste is a non-navigable, intrastate

pond (“the Pond”), not determined to be a “wetland,” that col-

lects polluted runoff within Cargill’s waste containment facil-

ity 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 pro-

tected water of the United States (Mowry Slough). Cargill

then brought this appeal. Because we conclude that mere adja-

cency provides a basis for CWA coverage only when the rele-

vant 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 inclu-

sion 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

2670 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

results in the production of waste residue that is heavily saline

and contains other pollutants. Cargill maintains within the

Refuge a 17-acre waste containment facility that it uses for

disposal of salt-processing residue. The northern portion of

the disposal site (the “upper elevation”) contains a pile of

uncovered waste several acres in size (“the Pile”). During

storms, rainwater carries residue from the upper elevation

(including the Pile) to the southern portion of the site (the

“lower elevation”) where it drains into the non-navigable

Pond. An earthen levee separates the southern edge of the

Pond from Mowry Slough, a navigable tributary of San Fran-

cisco Bay. The parties agree that Mowry Slough is a “water[ ]

of the United States.”

The horizontal distance between the edge of the Slough and

the edge of the Pond varies considerably depending on the

tide. At low tide, the Pond and the Slough are separated by as

much as 125 feet, including the surrounding wetlands. At high

tide, however, Slough water inundates the wetlands up to the

levee and has, on some occasions, overtopped the levee and

flowed into the Pond. While there is no evidence in the record

that liquid has ever flowed from the Pond to the Slough, the

district court made no specific rulings on that issue. Cargill

from time to time pumps waste water away from the Pond to

prevent the level of the Pond from approaching the top of the

levee.

In 1996, Baykeeper filed a citizen suit pursuant to 33

U.S.C. § 1365 against Cargill, stating various claims under

the CWA arising from Cargill’s alleged unpermitted dis-

charge of pollution into “waters of the United States” (the

Pond). From the beginning, the parties have disputed whether

the Pond is within the coverage of the CWA.

In its first motion for summary judgment, Baykeeper

alleged that the Pond is a “water[ ] of the United States” under

the “Migratory Bird Rule” of the Environmental Protection

Agency (“the EPA”), 53 Fed. Reg. 20,764, 20,765 (June 6,

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2671

1988), because it is used intermittently as habitat by migratory

birds. The district court agreed and granted summary judg-

ment in favor of Baykeeper on two claims.1 While appeals

were pending here, however, the Supreme Court issued its

decision in Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers (“SWANCC”), 531

U.S. 159 (2001), holding that the identical Migratory Bird

Rule of the Army Corps of Engineers (“the Corps), when

applied to isolated intrastate waters, exceeded the Corps’

authority under the CWA. Id. at 174. In light of SWANCC, we

vacated the district court’s summary judgment and remanded

for consideration of whether alternative grounds exist for

CWA jurisdiction. San Francisco Baykeeper v. Cargill Salt

Div., 263 F.3d 963 (9th Cir. 2001).

On remand, Baykeeper again moved for summary judg-

ment, this time advancing the theory that the Pond is a

“water[ ] of the United States” because it is adjacent to

Mowry Slough. Cargill opposed the motion, arguing that,

under controlling regulations, adjacency provides a basis for

CWA coverage only in the case of wetlands. Baykeeper has

apparently never argued or presented evidence that the Pond

qualifies as a “wetland” under the applicable regulatory defi-

nition. See 40 C.F.R. § 122.2 (2006).

The district court granted summary judgment a second time

in favor of Baykeeper after determining that “bodies of water

that are adjacent to navigable waters are ‘waters of the United

States’ and are therefore protected under the Clean Water

Act.” Noting that adjacent wetlands qualify for CWA protec-

tion under the applicable regulations and Supreme Court pre-

1

The district court granted summary judgment that Cargill violated 33

U.S.C. §§ 1311 and 1342(p)(2)(B) by discharging stormwater associated

with industrial activity into “waters of the United States,” and that Cargill

violated 33 U.S.C. § 1311 by discharging non-stormwater pollutants into

“waters of the United States.” Following the summary judgment ruling,

Baykeeper dismissed its remaining claims with prejudice.

2672 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

cedent, the court reasoned that “the same characteristics that

justif[y] protection of adjacent wetlands . . . apply as well to

adjacent ponds.” In support of its determination that the Pond

is a water of the United States, the district court found as

undisputed facts that: (1) “the Pond was adjacent to Mowry

Slough at the time that the suit was filed”; (2) “the soils

between the Pond and Mowry Slough are saturated”; and (3)

“the berm between the Pond and Mowry Slough leaked and

allowed Slough water to enter the Pond at high tide.”2

The parties subsequently entered into a settlement agree-

ment setting forth potential remedies contingent on further

proceedings, and preserving the right to appeal certain issues

(including the district court’s finding of CWA jurisdiction

based on adjacency). As part of the agreement, Baykeeper

waived the right “now or in the future” to assert “any theories

of CWA jurisdiction over the Site (including the Pond), other

than the Adjacent Waters Theory upon which the District

Court based its Jurisdictional Ruling.” The district court

issued a final judgment incorporating the terms of the settle-

ment agreement, and this appeal followed.

Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s grant of summary judgment that

the Pond is a “water[ ] of the United States.” Baccarat Fre-

mont Developers, LLC v. United States Army Corps of Eng’rs,

425 F.3d 1150, 1153 (9th Cir. 2005).

2

In a separate summary judgment ruling, the district court held that it

lacked jurisdiction to order removal of that portion of the Pile created

before 1991 because: (1) Baykeeper’s 1996 “notice” letter failed to pro-

vide the requisite specificity concerning pre-1991 discharges; and (2) the

five-year limitations period in 28 U.S.C. § 2462 barred relief for any time

prior to five years preceding the filing of the complaint. Baykeeper filed

a cross-appeal arguing that the district court erred in declining to order

removal of pre-1991 discharges. Because we conclude that the district

court erred in determining that the Pond is a “water[ ] of the United

States,” we do not reach the issues raised in Baykeeper’s cross-appeal.

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2673

Discussion

We conclude that the district court improperly expanded

the regulatory definition of “waters of the United States”

when it held that bodies of water that are adjacent to naviga-

ble waters are subject to the CWA by reason of that adja-

cency. Our conclusion is based on the CWA, the regulations

promulgated by the agencies responsible for administering it,

and the decisions of the Supreme Court addressing the reach

of the Act and its regulations.

[1] Congress passed the CWA in 1972 “to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 86 Stat. 816, codified at 33 U.S.C.

§ 1251(a). One of its principal provisions prohibits the unper-

mitted discharge of pollutants into “navigable waters.” 33

U.S.C. § 1311(a). The term “navigable waters” is defined

elsewhere in the Act to mean “waters of the United States.”

Id. § 1362(7).

[2] By not defining further the meaning of “waters of the

United States,” Congress implicitly delegated policy-making

authority to the EPA and the Corps, the agencies charged with

the CWA’s administration. See Chevron, USA Inc. v. Natural

Res. Def. Council, 467 U.S. 837, 844 (1984) (holding that

congressional delegation to an agency may be implicit).3

Although the Corps initially construed the Act to cover only

waters navigable-in-fact, the Corps and the EPA have since

issued nearly identical regulations expanding the definition of

“waters of the United States” to include some intrastate water-

bodies that are not navigable in the traditional sense.4

3

The CWA explicitly authorizes the Administrator of the EPA “to pre-

scribe such regulations as are necessary to carry out his functions under

this chapter.” 33 U.S.C. § 1361(a).

4

For present purposes, the two agencies’ regulatory definitions of “wa-

ters of the United States” are substantively identical.

2674 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

[3] As relevant here, current regulations protect not only

navigable-in-fact waters but also tributaries of such waters, 40

C.F.R. § 122.2 (“Waters” (e)),5 non-navigable waterbodies

whose use or misuse could affect interstate commerce, id.

§ 122.2 (“Waters” (c)), and, most important for our purposes,

“ ‘wetlands’ adjacent to waters (other than waters that are

themselves wetlands)” otherwise covered by the Act, id.

§ 122.2 (“Waters” (g)). “Wetlands” are defined to mean

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. Wetlands gener-

ally include swamps, marshes, bogs, and similar

areas.

Id.

[4] Under the controlling regulations, therefore, the only

areas that are defined as waters of the United States by reason

of adjacency to other such waters are “wetlands.” There is lit-

tle doubt that the regulatory definition is intended to be

exhaustive; the context makes that clear, as does the fact that

the definition states what “Waters of the United States . . .

means,” not what those waters “include.” See id.; Shell Oil

Co. v. EPA, 950 F.2d 741, 753 (D.C. Cir. 1992) (giving

restrictive effect to a definition that states what a term

“means” as opposed to what it “includes”). Disregarding the

unambiguous regulations limiting to wetlands the areas sub-

ject to the CWA because of adjacency, the district court deter-

mined that the Pond is covered by the Act because “the same

5

Section 122.2 of the regulations sets forth alphabetically the words or

terms being defined, and in some cases then provides letter-designated

subdivisions under a definition. For convenience, this opinion cites the

subdivisions under the definition of “Waters of the United States” as “Wa-

ters (a)” etc.

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2675

characteristics that justif[y] protection of adjacent wetlands

. . . apply as well to adjacent ponds.” This analysis was

improper.

[5] When 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 adminis-

trator of an agency.” Chevron, 467 U.S. at 844; see also

United States v. Mead Corp., 533 U.S. 218, 229 (2001);

Wash., Dep’t of Ecology v. U. S. EPA, 752 F.2d 1465, 1469

(9th Cir. 1985) (an agency’s reasonable interpretation of a

statute is entitled to deference “even if the agency could also

have reached another reasonable interpretation, or even if [the

court] would have reached a different result had [it] construed

the statute initially”). This principle applies with particular

force where, as here, “statutory construction involves recon-

ciling conflicting policies, and a full understanding of the

force of the statutory policy in the given situation (depends)

upon more than ordinary knowledge respecting the matters

subjected to agency regulations.” Wash., Dep’t of Ecology,

752 F.2d at 1469 (internal quotation marks and citations omit-

ted; parenthesis in original). The district court did not deter-

mine, nor was it argued, that the existing regulatory definition

of “waters of the United States” is unreasonable because it

fails to include all waterbodies, or some other subcategory of

waterbodies, adjacent to navigable waters. Moreover, for rea-

sons that will become apparent, it was not unreasonable for

the EPA to view wetlands as a special category subject to

CWA jurisdiction that otherwise would not extend beyond

navigable waters. We conclude, therefore, that the district

court erred when it found that the Pond is subject to CWA

jurisdiction solely because it is “adjacent”6 to Mowry Slough.

6

For present purposes, we accept Baykeeper’s definition of “adjacent”

as extending beyond physical proximity to include the additional factors

relied upon by the district court in determining that the Pond is adjacent

to the Slough (i.e., that the soils between the Pond and the Slough are satu-

rated, and that liquid has intermittently flowed from the Slough to the

Pond).

2676 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

It is true that, in certain kinds of cases, there is a tension

between the purpose of authorized citizen suits and Chevron

deference. The purpose of the citizen suit provision of the

CWA, 33 U.S.C. § 1365, is to permit citizens to enforce the

Clean Water Act when the responsible agencies fail or refuse

to do so. For that reason, the CWA provides that a citizen

must give sixty days notice to the relevant agency prior to

commencing a citizen suit, and cannot bring such an action if

the agency is prosecuting an enforcement action. See id.

§ 1365(b)(1). In most cases, citizen suits are brought to

enforce limitations included in a permit issued by the EPA,

see, e.g., Sierra Club, Lone Star Chapter v. Cedar Point Oil

Co., 73 F.3d 546, 566 (5th Cir. 1996), and the suit does not

call into question any interpretation of the statute by the

agency. On occasion, however, a citizen sues because of a

discharge that the EPA has elected not to regulate. If the deci-

sion of the EPA is given conclusive deference, the citizen suit

would be defeated. Suit is therefore allowed despite the

EPA’s inaction, and a court may decide whether the offending

substance is a pollutant even when the EPA has not decided

that question. See id. at 566-67. Thus, we have held that a

court may, in entertaining a citizen suit, decide whether a dis-

charge of particular matter into navigable waters violates the

CWA even though the regulating agency determined that the

discharge was not subject to the requirement of a permit.

Ass’n to Protect Hammersley, Eld, and Totten Inlets v. Taylor

Resources, Inc., 299 F.3d 1007, 1012-13 (9th Cir. 2002).

These cases do not, however, justify courts in denying def-

erence to the EPA or the Corps when, by formal regulation,

those agencies construe the meaning of a statutory term that

establishes the reach of the CWA that they administer. Cf.

Mead Corp., 533 U.S. at 230 (stating that the “overwhelming

number of our cases applying Chevron deference have

reviewed the fruits of notice-and-comment rulemaking or for-

mal adjudication”). Indeed, in deciding the merits of the citi-

zens’ claim in Taylor Resources, we were heavily guided by

the EPA’s definition of “point sources” in order not to “under-

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2677

mine the agency’s interpretation of the Clean Water Act.”

Taylor Resources, 299 F.3d at 1019. To decide the present

case brought by Baykeeper, the district court and we are

required to determine whether Cargill has discharged pollu-

tants into a water of the United States without a permit. For

reasons already stated, it is most appropriate to defer to the

administering agencies in construing the statutory term “wa-

ters of the United States,” which establishes the reach of the

CWA. Deference is especially suitable because this borderline

determination of non-navigable areas to be made subject to

the CWA is one that involves “conflicting policies” and

expert factual considerations for which the agencies are espe-

cially well suited. See Wash., Dep’t of Ecology, 752 F.2d at

1469. Because we do not want to undermine or throw into

chaos the EPA’s and the Corps’ construction of the statute

that establishes the reach of the CWA, Chevron deference is

required, even in this citizen suit.

Baykeeper appears to concede that the regulatory definition

of “waters of the United States” does not support the district

court’s expansive construction. Nevertheless, it argues that

summary judgment was appropriately granted because “the

Supreme Court has repeatedly held that the CWA protects all

waterbodies with a ‘significant nexus’ to navigable waters.”

This is simply not the case. In United States v. Riverside Bay-

view Homes, Inc., 474 U.S. 121 (1985), the Court held that

the Corps did not exceed its statutory authority when it

defined “waters of the United States” to include adjacent wet-

lands. Id. at 134-35. The Supreme Court’s opinion leaves lit-

tle doubt about two of its foundations: (1) that it is up to the

Corps to determine where “waters of the United States” end,

and (2) that the Corps’ regulation was reasonable in treating

adjacent wetlands as a unique category subject to the CWA

despite their non-navigability:

The Corps has concluded that wetlands may affect

the water quality of adjacent lakes, rivers, and

streams even when the waters of those bodies do not

2678 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

actually inundate the wetlands. For example, wet-

lands that are not flooded by adjacent waters may

still tend to drain into those waters. In such circum-

stances, the Corps has concluded that wetlands may

serve to filter and purify water draining into adjacent

bodies of water and to slow the flow of surface run-

off into lakes, rivers, and streams and thus prevent

flooding and erosion . . . . In addition, adjacent wet-

lands may “serve significant natural biological func-

tions, including food chain production, general

habitat, and nesting, spawning, rearing and resting

sites for aquatic . . . species.” In short, the Corps has

concluded that wetlands adjacent to lakes, rivers,

streams, and other bodies of water may function as

integral parts of the aquatic environment even when

the moisture creating the wetlands does not find its

source in the adjacent bodies of water. Again, we

cannot say that the Corps’ judgment on these matters

is unreasonable . . . .

Id. (internal citations omitted). It is simply not permissible to

conclude from this passage that a court is authorized to con-

clude, when the administering agencies have reasonably ruled

to the contrary, that other non-navigable bodies of water,

which are not wetlands, are waters of the United States

because they are adjacent to such waters.

Sixteen years after Bayside, the Supreme Court in

SWANCC struck down the Migratory Bird Rule, noting that

isolated intrastate ponds, unlike wetlands, lack a significant

nexus to navigable waters. 531 U.S. at 167-68. SWANCC did

not hold, however, that the Corps would be required to regu-

late all non-navigable bodies of water with some nexus to

navigable waters, and it certainly did not hold that a court

would be free to impose such a regulatory requirement if the

administering agencies did not.

[6] Baykeeper’s reliance on Rapanos v. United States, 126

S. Ct. 2208 (2006), is similarly misplaced. Rapanos, like Riv-

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2679

erside Bayview, concerned the scope of the Corps’ authority

to regulate adjacent wetlands. Justice Kennedy’s controlling

concurrence explained that only wetlands with a significant

nexus to a navigable-in-fact waterway are covered by the Act.

Id. at 2248 (Kennedy, J., concurring) (“Consistent with

SWANCC and Riverside Bayview and with the need to give

the term ‘navigable’ some meaning, the Corps’ jurisdiction

over wetlands depends upon the existence of a significant

nexus between the wetlands in question and navigable waters

in the traditional sense.”). No Justice, even in dictum,

addressed the question whether all waterbodies with a signifi-

cant nexus to navigable waters are covered by the Act.

[7] We conclude, therefore, that nothing in Bayview,

SWANCC or Rapanos requires or supports the view that Car-

gill’s Pond is a water of the United States because it is adja-

cent 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 unrea-

sonable 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:

[W]etlands possess the requisite nexus, and thus

come within the statutory phrase “navigable waters,”

if the wetlands, either alone or in combination with

similarly situated lands in the region, significantly

affect the chemical, physical, and biological integrity

of other covered waters more readily understood as

“navigable.” When, in contrast, wetlands’ effects on

water quality are speculative or insubstantial, they

fall outside the zone fairly encompassed by the statu-

tory term “navigable waters.”

2680 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

Rapanos, 126 S. Ct. at 2248 (Kennedy, J., concurring)

(emphasis added). By any permissible view of the evidence,

the effect of Cargill’s Pond on Mowry Slough is speculative

or insubstantial; the Pond does not significantly affect the

integrity of the Slough. First, there is no evidence that any

water has ever flowed from the Pond to the Slough. One

expert, asked whether “given the right hydrology conditions,”

water could flow from the Pond to the Slough, answered that

“it is possible.” There is no evidence, however, that those

“right hydrology conditions” have ever existed or were likely

to exist. This testimony fits the definition of “speculative.”

There was also much emphasis on the fact that, in some high

tide situations, water from the Slough has flowed over the

levee, or seeped through the levee, into the Pond. But flow in

that direction does not affect the navigable body of water in

the Slough. Thus the evidence does not meet Justice Kenne-

dy’s standard, and we emphasize that this standard was for

wetlands, for which the Corps had made special allowance

beyond the margins of the usual navigable waters at which the

CWA is aimed. We therefore reject the “adjacency-plus-

nexus” argument that Baykeeper puts forward.7

Relying on Headwaters, Inc. v. Talent Irrigation District,

243 F.3d 526 (9th Cir. 2001), Baykeeper next argues that the

Pond is a “water[ ] of the United States” because even inter-

mittent hydrologic connections are sufficient to trigger CWA

jurisdiction. In Headwaters, we held that an irrigation canal

that drained intermittently into a protected waterbody was

subject to the CWA because it qualified as a “tributary” under

40 C.F.R. § 230.3(s)(5). Headwaters, 243 F.3d at 533. While

Headwaters is relevant to the permissible scope of the Corps’

7

It is important to keep in mind the key claim before us in this case: that

Cargill discharged pollutants into its Pond without a permit. There is no

question that, if Cargill engaged in some action that caused the discharge,

or permitted the leakage, of pollutants from the Pond into Mowry Slough

without a permit, it would be in violation of the CWA because of that dis-

charge into the Slough, which all parties agree is a water of the United

States. No such violation has been shown or is now claimed.

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2681

tributary jurisdiction, it has no bearing on the issue presented

here: whether the Pond is protected under the CWA because

it is adjacent to navigable waters. In any event, the instant

record does not support a finding that the Pond is a tributary

of the Slough; there is no evidence that water from the Pond

has ever flowed into the Slough or the Slough’s wetland.

Our decisions in Baccarat Fremont Developers, LLC v.

United States, 425 F.3d 1150 (9th Cir. 2005), and Northern

California River Watch v. City of Healdsburg, 457 F.3d 1023

(9th Cir. 2006), also do not support Baykeeper’s position that

CWA jurisdiction extends to all adjacent waterbodies. In Bac-

carat, we held simply that SWANCC did not modify the

Supreme Court’s holding in Riverside Bayview that the Corps

can appropriately exercise jurisdiction over adjacent wetlands.

Baccarat, 425 F.3d at 1156-57. We expressed no opinion

regarding the Corps’ jurisdiction over adjacent waterbodies

not qualifying as wetlands.

[8] City of Healdsburg also concerned the Corps’ jurisdic-

tion over adjacent wetlands. There, we applied Justice Kenne-

dy’s “significant nexus” standard, see Rapanos, 126 S. Ct. at

2248, and concluded that the wetland at issue was a “water[ ]

of the United States” because (among other reasons) its

waters seep directly into a protected river. City of Healdsburg,

457 F.3d at 1030-31. All told, we know of no case holding

that all waterbodies adjacent to navigable waters are covered

by the Act.

As its fallback, Baykeeper argues that, under EPA regula-

tions, the Pond qualifies for CWA protection as a waterbody

whose use or misuse could affect interstate commerce, 40

C.F.R. § 122.2 (Waters (a), (c)), and as a “tributary” of a pro-

tected waterbody.8 Id. (Waters (e)). We note that neither of

8

These grounds for CWA coverage are also recognized in substantively

identical regulations issued by the Army Corps of Engineers. See 40

C.F.R. §§ 230.3(s)(1), (3), (5).

2682 SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION

these theories was urged as an independent ground of jurisdic-

tion in support of the most recent summary judgment, and

that, following that judgment, Baykeeper executed a settle-

ment agreement waiving the right to assert all jurisdictional

theories “other than the Adjacent Waters Theory upon which

the District Court based its Jurisdictional Ruling.” Baykeeper

apparently concedes that the waiver provision is valid and

enforceable.9 It argues, however, that its alternative theories

are not waived because the “Adjacent Waters Theory,”

broadly construed, includes consideration of facts other than

mere physical proximity.

[9] Construing the waiver provision liberally in

Baykeeper’s favor, we conclude that Baykeeper reserved (at

most) the right to assert theories of CWA coverage that are

supported by facts on which the district court based its ruling.

Although the district court noted that the soils between the

Pond and the Slough are saturated, and that liquid from the

Slough has entered the Pond at high tide, it did not point to

any evidence, and we have found none, that liquid or matter

9

Some confusion has been caused by the fact that we and the parties

have from time to time referred to the issue in this case as whether the

Pond is within the “jurisdiction” of the CWA. A better statement of the

issue would be whether the Pond is within the coverage of the CWA. In

any event, the “jurisdiction” of the CWA has nothing to do with the juris-

diction of this court. Baykeeper’s complaint alleged that Cargill had vio-

lated the CWA by discharging pollutants into the waters of the United

States. That colorable allegation clearly gave the district court jurisdiction

over the case, see 33 U.S.C. § 1365(a), 28 U.S.C. § 1331, and we have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Baykeeper’s

failure to establish that Cargill’s Pond was a water of the United States is

a failure to make out a case, not a failure to establish the jurisdiction of

the court. See Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1242-45 (2006)

(discussing loose use of term “jurisdiction” and holding that failure to

establish that defendant is covered by the governing statute is failure to

make out a claim, not a failure to establish jurisdiction). Thus,

Baykeeper’s stipulation is not subject to question as an attempt to limit the

scope of our subject-matter jurisdiction. See id. at 1244 (“[S]ubject-matter

jurisdiction, because it involves the court’s power to hear a case, can never

be forfeited or waived.”) (internal quotation marks omitted).

SAN FRANCISCO BAYKEEPER v. CARGILL SALT DIVISION 2683

from the Pond has flowed or will flow to the Slough or its

wetlands (a factual predicate for tributary jurisdiction). Nor

did the district court base its ruling on the fact that Cargill’s

discharge of pollutants into the Pond “could affect interstate

or foreign commerce.” 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 inter-

state commerce. Accordingly, we conclude that these alterna-

tive theories are independent of the “Adjacent Waters

Theory” and are waived.

Conclusion

For the foregoing reasons, the district court’s summary

judgment ruling is REVERSED. In light of that ruling,

Baykeeper’s cross-appeal is DISMISSED as moot.

No. 04-17554: REVERSED.

No. 05-15051: DISMISSED as moot.