San Francisco Baykeeper v. Sunnyvale

Background

The court had previously granted summary judgment concerning whether certain waters were “waters of the United States,” or WOTUS, under the Clean Water Act. The court had found that the San Francisco Bay, Guadalupe Slough, Stevens Creek, Calabazas Creek, and Sunnyvale East Channel qualified as WOTUS under the legal standards then applied.

The Cities—City of Sunnyvale and City of Mountainview—received permission to seek reconsideration only on whether the Supreme Court’s decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), affected the court’s WOTUS conclusions. The Cities conceded that the San Francisco Bay remained a WOTUS and sought reconsideration of the findings concerning Guadalupe Bay, Stevens Creek, Calabazas Creek, and Sunnyvale East Channel. The opinion’s discussion of the prior order refers to Guadalupe Slough; the motion description refers to Guadalupe Bay.

Evidence and Procedural Requests

San Francisco Baykeeper objected to a declaration submitted with the Cities’ reply concerning the hydrology of Stevens Creek, Calabazas Creek, and Sunnyvale East Channel. Baykeeper also sought permission to depose the declaration’s author and file a surreply, meaning an additional written response.

The court had previously limited the reconsideration proceeding to existing discovery and had denied additional discovery. It found that the declaration was new evidence that had not been disclosed before the Cities’ reply. The court therefore sustained Baykeeper’s objection and disregarded references to, or arguments based on, the declaration, but found it unnecessary to strike the declaration from the record. The court also disregarded new charts in Baykeeper’s opposition because they were not part of the existing discovery, even though the Cities had not objected to them. Because the court sustained Baykeeper’s objection and would not consider the declaration, it terminated as moot Baykeeper’s request to take the deposition and file a surreply.

Legal Standard

The court applied Federal Rule of Civil Procedure 59(e), which governs motions to alter or reconsider a judgment. Reconsideration is an extraordinary remedy generally limited to highly unusual circumstances, such as newly discovered evidence, clear error, or an intervening change in controlling law. A party may not use reconsideration to relitigate matters or raise arguments or evidence that could reasonably have been presented earlier.

Effect of Sackett

The court explained that Sackett adopted the “relatively permanent” standard from the plurality opinion in Rapanos v. United States and rejected the prior “significant nexus” standard. Under the relatively permanent standard, the Clean Water Act covers relatively permanent, standing, or continuously flowing bodies of water that are ordinarily understood as streams, oceans, rivers, and lakes.

The court concluded that Sackett did not alter its earlier findings. Guadalupe Slough was tidally influenced, and Sackett did not eliminate the established rule that tidally influenced waters can qualify as WOTUS. Stevens Creek and Calabazas Creek were seasonal, relatively permanent tributaries to a WOTUS. The court relied on the principle that relatively permanent waters can include seasonal rivers that flow continuously during some months but not during dry months.

The court also concluded that Sunnyvale East Channel remained a WOTUS. Although the prior order had relied on the significant-nexus standard when discussing that channel, the existing evidence showed that it flowed continuously during certain times of the year and more than in direct response to precipitation. The court therefore found that the channel qualified under the relatively permanent standard. The court also rejected the Cities’ arguments that waters had to be traditionally navigable or that manmade channels could not qualify as WOTUS.

Disposition

The court denied the Cities’ motion for reconsideration, sustained Baykeeper’s evidentiary objections, and terminated as moot Baykeeper’s request for permission to take a deposition and file a surreply. The court did not address additional arguments about standing and liability because they exceeded the limited scope of the reconsideration proceeding. Judge Edward J. Davila signed the order.