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Baccarat Fremont Developers Ltd. Liab. Co. v. Corps of Eng'rs

ELR Citation: 35 ELR 20212
Nos. No. 03-16586, (9th Cir., 10/14/2005)

The court holds that the U.S. Army Corps of Engineers (the Corps) properly determined that it has jurisdiction over wetlands adjacent to waters of the United States. A landowner argued that in light of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001), adjacency is no longer sufficient to establish the Corps' jurisdiction. The landowner argued that the Corps must demonstrate an adequate hydrological or ecological connection between the wetlands and the adjacent waters of the United States. SWANCC, however, did not address the Corps' adjacency jurisdiction. Rather, it invalidated the Corps' Migratory Bird Rule. SWANCC did not modify the Court's decision in United States v. Riverside Bayview Homes, 474 U.S. 121, 16 ELR 20086 (1985), in which the Court upheld the Corps' exercise of jurisdiction over adjacent wetlands as defined in 33 C.F.R. §328.3(c). Because the Corps complied with requirements of 33 C.F.R. §328.3(c), which does not require a significant hydrological or ecological connection between the particular wetlands at issue and waters of the United States, the Corps' jurisdiction determination was proper. In so holding, the Ninth Circuit takes the same stance as the Sixth Circuit on this issue.