Re: 9th Circuit Court Surprise
Now 'wetlands' are not navigable, but the 9th did not strike down the fact that the CWA applied to 'wetlands'. Or the fact that the EPA or Corps of Engineers could issue regulations adding further to the 'waters of the United States', beyond 'navigable' to non-navigable tributaries and wetlands.
The only thing the 3-judge panel said was that the pond in question was not a 'wetland'.
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Because we conclude that mere adjacency provides a basis for CWA coverage only when the relevant body is a "wetland," and no other reason for CWA coverage of Cargill's Pond is supported by evidence or is properly before us, we reverse the district court's summary judgement.
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And the "liberal" 9th sent the case back once already, saying the Migratory Bird Rule did not protect the Pond.
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