The NAM joined with the American Forest & Paper Association, American Petroleum Institute, Chamber of Commerce of the United States, Corn Refiners Association, Grocer Manufacturers of America and the Western States Petroleum Association in an environmental case involving waste containment ponds. The issue is whether a citizen's group can sue a company under the Clean Water Act for damages because the company did not have a permit to use a containment pond for salt processing residues at its salt-making facility in California. The Clean Water Act's jurisdiction extends only to "navigable waters" of the United States, and we argued that there is no jurisdiction over a containment pond that is not hydrologically connected to -- and has no impact on -- any navigable waterway. It is not enough that a pond simply be adjacent to or in proximity to waters of the United States -- there must be a more direct connection.
The Supreme Court's 2006 ruling in the Rapanos case was expected to offer some guidance, but it was a splintered decision.
On March 8, 2007, the Ninth Circuit overruled the lower court's decision. It deferred to the EPA's regulatory definition of "waters of the United States", which does not include waters that are simply adjacent to navigable waters. While wetlands that are adjacent to navigable waters are subject to Clean Water Act jurisdiction, other bodies of water, such as the waste collection pond in this case, are not. The court distinguished the Rapanos decision because it applies only to wetlands. Even if a party were permitted to show that there was some hydrological connection between the pond and navigable waters, the evidence was speculative or insubstantial in this case.