What Went Wrong in San Francisco Baykeeper v. Cargill Salt Division? The Ninth Circuit's Weak Reading of Kennedy's Rapanos Concurrence, and a Prescription for Litigating Clean Water Act Claims under Rapanos

Casey, Genevieve
August 2008
Ecology Law Quarterly;2008, Vol. 35 Issue 3, p531
Academic Journal
The Supreme Court's split decision in Rapanos v. United States left the lower courts with the question of whether to apply the plurality's restrictive test for determining which waters are protected under the Clean Water Act (CWA), or whether to use Justice Kennedy's more flexible, policy-based test. For those courts intending to follow Kennedy's concurrence, the parameters of his "significant nexus" test were far from explicit. In Baykeeper v. Cargill Salt Division the Ninth Circuit relinquished its first opportunity to apply the significant nexus test expansively in order to keep the CWA potent as a tool for environmental protection. The best remaining approach for litigants seeking to establish CWA coverage of non-navigable-in-fact waters that are not wetlands is to proceed under the theory that such waters are tributaries with a significant nexus to navigable waterways, pressing this language into service in the broadest array of hydrological scenarios possible.


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