Sadly, I think that, in a post-SWANCC and post-Rapanos world, the 9th Circuit was correct on all points. The sad reality is that neither EPA's nor the Corps' regulations assert jurisdiction over ponds based merely on their adjacency to other "navigable waters." The regulations do this with regard to wetlands, but not ponds.

Also, nothing in the Clean Water Act mandates that these adjacent ponds be covered absent a regulatory assertion of jurisdiction. Kennedy's opinion in Rapanos stands for the proposition that EPA and the Corps may lawfully assert jurisdiction over any waters with a "significant nexus" to other covered waters, but it does not stand for the proposition that they must. Nor does it stand for the proposition that the CWA itself clearly indicates that these waters are covered.

I note, however, that, if it wanted to, EPA and the Corps could solve this "problem" tomorrow, simply by rewriting their rules in a fashion that asserts jurisdiction over at least those adjacent ponds with a significant nexus to any nearby covered waters. They may even be able to make a categorical determination that all such adjacent ponds (however adjacency were to be defined) have such a signficant nexus. I am not, however, holding my breath as I await this regulatory "fix."

And lastly, it is worth noting that this Baykeeper case should not control situations in which ponds drain into other covered waters through creeks and the like. The court in this case specifically pointed out that there was "no evidence that water from the Pond has ever flowed into the Slough or the Slough's wetland." If there were such evidence, it would seem that Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), would control.

[Craig Johnston is professor of law at Lewis & Clark Law School. -Eds.]