San Francisco Baykeeper v. Cargill Salt Division

ORDER

Two major developments, in the form of United States Supreme Court decisions, have occurred since the district court rendered its decision in this action brought under the Clean Water Act, 33 U.S.C. §§ 1251-1376 , and they require that we vacate the judgment and remand for further proceedings.

First, the Supreme Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 , 121 S.Ct. 675 , 148 L.Ed.2d 576 (2001), in which it invalidated the Corps’ “Migratory Bird Rule,” 51 Fed. Reg. 41206 , 41217, as a basis of jurisdiction under the Clean Water Act. Without benefit of this decision, the district court relied on the Environmental Protection Agency’s identical “Migratory Bird Rule,” 53 Fed. Reg. 20,764 , 20,765, to find jurisdiction in this case.

Second, the Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 , 120 S.Ct. 693 , 145 L.Ed.2d 610 (2000), in which it made clear that a private plaintiff seeking relief from present or future violations of the Clean Water Act may seek civil penalties. Without benefit of this decision, the district court determined that…