Federal court ruling favors polluters
Conservation group suit denied
Don Edwards San Francisco Bay National Wildlife Refuge
and Wildlife Service
By Julia Cheever, Bay City News Service
March 8, 2007
SAN FRANCISCO (BCN) - A federal appeals court ruled today
that a conservation group can't sue Cargill Salt Division for
alleged pollution of a rainwater pond within a wildlife refuge
in the southern part of San Francisco Bay.
The 9th U.S. Circuit Court of Appeals in San Francisco said the
pond wasn't covered by the U.S. Clean Water Act because it wasn't
a navigable river or a wetland.
Cargill was allowed to keep a 17-acre waste containment area
that includes the pond when the Don
Edwards San Francisco Bay Wildlife Refuge was created in the
southern part of the bay. The rainwater pond is separated from
the nearby Mowry Slough by an earthen levee.
Screenshot courtesy Cargill
John Barg, a lawyer for Cargill, said the company never put wastes
that sometimes accumulated in the pond into the bay, but instead
sent the wastewater back to an evaporation pond.
But San Francisco Baykeeper,
a citizens' group dedicated to protecting the bay, argued in a
lawsuit that the pond was subject to the Clean Water Act because
it was next to the slough.
The law requires a federal permit for discharging pollution into
navigable waters, which have been defined to include adjacent
wetlands as well as navigable waters.
In today's ruling, a three-judge panel of the appeals court said
that definition could not be expanded to include freestanding
ponds next to navigable waters.
It said the U.S. Environmental
Protection Agency and Army
Corps of Engineers were entitled to limit the scope of the
law to navigable waters and adjacent wetlands.
The panel overturned a ruling in which U.S. District Judge Susan
Illston of San Francisco said in 2003 that the same characteristics
that justify protection of adjacent wetlands apply to adjacent
ponds as well.
Daniel Purcell, a lawyer for San Francisco Baykeeper, said the
group has not decided whether to appeal to an expanded panel of
the circuit court.
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