Baccarat Fremont Developers, LLC v. United States Army Corps of Engineers

Baccarat Fremont Developers, LLC (“Baccarat”) seeks to set aside the determination by the Army Corps of Engineers (the “Corps”) that under the Clean Water Act (“CWA”) it has jurisdiction over 7.66 acres of wetlands located on property owned by Baccarat in Fremont, California. The Corps asserts jurisdiction based on the fact that the wetlands are adjacent to waters of the United States. Baccarat argues that after the Supreme Court’s decision in Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 581 U.S. 159 , 121 S.Ct. 675 , 148 L.Ed.2d 576 (2001) (“SWANCC”), adjacency is no longer sufficient to establish the Corps’ jurisdiction under the CWA. In Baccarat’s view, the Corps failed to demonstrate an adequate hydrological or ecological connection between these particular wetlands and the adjacent waters of the United States. We affirm the district court’s grant of summary judgment in favor of the Corps.

I. Background

In July 1997, Baccarat purchased a 30.98 acre site (“the site”) near San Francisco Bay in Fremont, California, on which it planned to develop a six-building office, research, and manufacturing facility. The site is roughly rectangular. It is…