Inland Empire Waterkeeper, et al. v. Corona Clay CompanyInland Empire Waterkeeper, et al. v. Corona Clay Company
David O. Carter, District Judge, Presiding
Argued and Submitted August 11, 2025
Pasadena, California
Filed August 5, 2026
Before: Jacqueline H. Nguyen, Danielle J. Forrest, and Lawrence VanDyke, Circuit Judges.
Opinion by Judge Forrest
SUMMARY*
Environmental Law
The panel reversed the district court‘s order denying defendant‘s motion for a new trial in a citizen suit under the Clean Water Act and remanded for further proceedings on the question of whether Temescal Creek in California is a “water of the United States” subject to regulation under the Act.
Plaintiffs sued defendant Corona Clay Co. for violating certain stormwater-permit requirements related to its clay-recycling activities conducted near Temescal Creek. Corona
The panel concluded that whether a case brought under the Clean Water Act involves a water of the United States is a merits question, not a question of jurisdiction. The panel therefore affirmed the district court‘s denial of Corona‘s post-judgment motion to dismiss for lack of subject-matter jurisdiction.
Given the change announced in Sackett concerning the scope of the Clean Water Act, however, the panel concluded that a new trial was required under
COUNSEL
Christopher Sproul (argued), Environmental Advocates, San Francisco, California; Sarah Spinuzzi, Orange County Coastkeeper, Costa Mesa, California; Jennifer F. Novak and Megan S. Meadows, Law Office of Jennifer F. Novak, Rancho Palos Verdes, California; for Plaintiffs-Appellees.
Nadia A. Sarkis (argued) and Kelly S. Delvac, Miller Barondess LLP, Los Angeles, California; Brian Neach, Law Offices of Brian Neach, Fountain Valley, California; for Defendant-Appellant.
OPINION
FORREST, Circuit Judge:
The law governing this case has undergone significant change in recent years. This appeal is the latest installment of what must now feel to the parties—and the district court—like an endless chain novel. Reluctantly, we conclude that the saga requires another chapter.
Inland Empire Waterkeeper and Orange County Coastkeeper (Plaintiffs) sued Defendant Corona Clay Company for violating certain stormwater-permit requirements related to its clay-recycling activities
Following our direction, the district court conducted a second trial. This time, Plaintiffs prevailed. Not long after, the law shifted again. The Supreme Court decided Sackett v. EPA, 598 U.S. 651 (2023), which narrowed what constitutes a “water of the United States” subject to regulation under the Clean Water Act. After Sackett was announced, Corona moved to dismiss for lack of subject-matter jurisdiction, arguing for the first time that Temescal Creek is not a water of the United States. Alternatively, Corona moved for a new trial so that the issue of whether the creek is covered by the Clean Water Act could be litigated.
Because we conclude that whether a case brought under the Clean Water Act involves a water of the United States is a merits question, not a question of jurisdiction, we affirm
BACKGROUND
A. Clean Water Act
Congress enacted the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
1. “Waters of the United States”
Interpreting “waters of the United States” as coextensive with “navigable waters” has troubled the executive branch and courts for decades. The concept of navigable waters has been long tied to Congress‘s Interstate Commerce Power and was understood to refer only to waters that were “navigable in fact,” or which could reasonably be made so, such that
In Rapanos, the Supreme Court fractured over whether wetlands noncontiguous to traditionally navigable waterways were covered by the Act. A four-justice plurality held that “waters of the United States” means “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes. The phrase does not include channels through which water flows intermittently or ephemerally . . . .” Id. at 739 (plurality) (citation modified). The plurality carefully distinguished between ephemeral channels, which it concluded were not covered, and seasonal streams, which it concluded were covered. Id. at 732 n.5 (“Common sense and common usage distinguish between a wash and seasonal river.“). Thus, under the plurality‘s test, wetlands were protected only if they had “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Id. at 742.
Justice Kennedy concurred in the judgment. Id. at 758. He reasoned that “[w]hen the [government] seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on
We held that Justice Kennedy‘s opinion controlled because it was the narrowest ground of decision. N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999–1000 (9th Cir. 2007) (citing Marks v. United States, 430 U.S. 188, 193 (1977)). In United States v. Moses, we further recognized that “a seasonally intermittent stream which ultimately empties into a river that is a water of the United States can, itself, be a water of the United States.” 496 F.3d 984, 989 (9th Cir. 2007). In reaching this decision, we relied both on our prior precedent and on every opinion in Rapanos—the plurality, Justice Kennedy‘s concurrence, and Justice Stevens‘s dissent. See id. at 989–91 (holding that “the Supreme Court unanimously agreed that intermittent streams (at least those that are seasonal) can be waters of the United States“).
The agencies responsible for administering the Clean Water Act—the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps)—promulgated several interpretive rules after Rapanos. In 2015, the agencies adopted Justice Kennedy‘s “significant nexus” test. See
In 2023, the Supreme Court stepped in again and conclusively resolved the question. In Sackett, the Court adopted the Rapanos plurality‘s test and rejected Justice Kennedy‘s approach. 598 U.S. at 671. The Court held that “waters of the United States” includes “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Id. (citation modified).
2. Permitting and Enforcement
There are two primary types of permits issued under the Clean Water Act: National Pollutant Discharge Elimination System (NPDES) permits, which are issued by the EPA, see
A NPDES permit is required for stormwater discharges “associated with industrial activity.”
Beyond discharge limitations, NPDES permits impose a variety of other conditions. See
States and the federal government have primary enforcement authority for unlawful discharges and permit violations. See
B. This Lawsuit
1. Corona‘s NPDES Permit Violations
Corona annually recycles approximately 20,000 tons of clay products at a facility in Corona, California. Corona‘s facility is near Temescal Creek—a 22-mile stream connecting Lake Elsinore and the Santa Ana River. When it rains, Corona‘s facility discharges stormwater that reaches Temescal Creek.
The California Water Resources Control Board has issued an Industrial General Permit (General Permit) for stormwater discharges from all covered facilities throughout the state. To receive coverage under this General Permit, a discharger must submit a Notice of Intent. The General Permit requires dischargers to implement best management practices to comply with both BAT and BCT requirements “to reduce or prevent discharges of pollutants in their storm water discharge in a manner that reflects best industry practice considering technological availability and economic practicability and achievability.” Dischargers must also
In 2014, Corona submitted a Notice of Intent and obtained coverage under the General Permit for stormwater discharges. Between 2015 and 2017, California regulators issued Corona several permit-violation notices, but they did not bring an enforcement action against Corona. Inland Empire Waterkeeper issued notice of its intent to bring a citizen suit, and along with Orange County Coastkeeper filed this lawsuit in 2018.
2. First Trial
Plaintiffs’ operative complaint alleged seven claims, ranging from unlawful discharges to violation of the procedural monitoring and reporting requirements imposed by the General Permit. Relevant here, Claim One alleged that Corona failed to implement best management practices that achieve BAT or BCT. See Inland Empire I, 17 F.4th at 830. Claim Two alleged permit violations arising from discharge of polluted stormwater. Id. Claim Five alleged that Corona failed to implement a SWPPP. Id. Claim Six alleged that Corona failed to adequately monitor its facility. Id. And Claim Seven alleged that Corona failed to submit accurate reporting. Id.2
In the first appeal, we held that Plaintiffs had standing to pursue the claims that went to trial. Id. at 832–35. We also held that the district court erred by instructing the jury that “an ongoing discharge violation [w]as a prerequisite to a [Clean Water Act] citizen suit asserting ongoing monitoring and reporting violations.” Id. at 835. We reasoned that while Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987), interpreted
We also observed that after trial the Supreme Court decided County of Maui, in which it held that even indirect discharges are covered by the Clean Water Act if they are the “functional equivalent” of a direct discharge. Inland Empire I, 17 F.4th at 836. We concluded that County of Maui
3. Second Trial
On remand, Plaintiffs sought summary judgment on their First, Fifth, Sixth, and Seventh claims. The district court denied summary judgment, reasoning that whether the discharges were functionally equivalent to a direct discharge was best left for the jury to decide because the parties had presented competing evidence concerning whether stormwater runoff from Corona‘s facility reached Temescal Creek. Notably, Corona conceded the following facts: (1) the Santa Ana River is traditionally navigable water and therefore a water of the United States, (2) Temescal Creek is a tributary of the Santa Ana River, and (3) Temescal Creek is a water of the United States. It did not concede that Temescal Creek is a relatively permanent water feature, but it also did not directly dispute that fact.
Plaintiffs voluntarily dismissed Claim Two, the last remaining claim alleging an actual discharge of stormwater, leaving only their asserted procedural permit violations for retrial. At the second trial, consistent with Corona‘s stipulation, the district court instructed the jury that “Temescal Creek is a water of the United States.” The jury found that Corona committed a direct discharge or the functional equivalent thereof “into waters of the United States.” It also found that Corona failed to implement best management practices by not using BCT or BAT to control stormwater discharges, failed to develop or implement a SWPPP that complied with the General Permit, and failed to
4. Post-Trial Proceedings
Roughly six months after the jury‘s verdict, the Supreme Court decided Sackett. As explained, it held that “waters of the United States” refers only to relatively permanent waterbodies—like streams, oceans, rivers, and lakes—and it rejected Justice Kennedy‘s significant-nexus test from Rapanos. Sackett, 598 U.S. at 671, 679–80. Relying on Sackett, Corona moved to dismiss for lack of subject-matter jurisdiction, arguing for the first time that Temescal Creek is not a water of the United States. The district court denied Corona‘s motion, holding that “the term ‘jurisdiction’ in the [Clean Water Act] context refers to statutory jurisdiction, or the bodies of water where the [Act] can be enforced, not subject-matter jurisdiction.” The district court then assessed over $1.8 million in penalties against Corona for the violations found by the jury.
After final judgment was entered, Corona once again moved for a new trial, arguing that Temescal Creek is not a water of the United States under Sackett. The district court also denied this motion. It first concluded that
DISCUSSION
The district court was correct that Corona did not dispute in either previous trial that Temescal Creek is a water of the United States. Ordinarily, we treat issues not raised before verdict is entered as forfeited. See Doi v. Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir. 2002). To escape that result, Corona presses two exceptions. First, that the district court lacked subject-matter jurisdiction because the Clean Water Act violations asserted against Corona did not involve any waters of the United States. And second, that even if this requirement is not jurisdictional, Sackett was an intervening change in law that warrants post-trial relief under
A. Subject-Matter Jurisdiction
Subject-matter jurisdiction “involves a court‘s power to hear a case,” so it “can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The party asserting federal jurisdiction must establish that it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Parties cannot consent to subject-matter jurisdiction and “principles of estoppel do not apply.” Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
According to Corona, subject-matter jurisdiction exists here only if Temescal Creek is a water of the United States. We reject Corona‘s premise. The Supreme Court has repeatedly observed that “[j]urisdiction . . . is a word of many, too many, meanings.” Arbaugh, 546 U.S. at 510 (quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 90 (1998)). “Because jurisdictional rules have a unique capacity to disrupt the orderly adjudication of disputes,” the Court has cautioned that a statutory requirement should be treated as truly jurisdictional only when “Congress has clearly signaled that the rule is meant to have that status.” Riley v. Bondi, 606 U.S. 259, 274 (2025). This signal must be “exceedingly strong.” Id. Such a signal may exist where the statute references jurisdiction or includes language “demarcat[ing] a court‘s power.” Id. (alteration in original) (quoting Harrow v. Dep‘t of Def., 601 U.S. 480, 484 (2024)).
The Clean Water Act does not strongly signal that involvement of waters of the United States is necessary for a court to have power to hear a citizen suit bought under this statute. Unlike the parties—who hardly mention the Act itself—we start with the statutory text. Section 1365 creates a private right of action to enforce the Act. It provides that “any citizen” can sue “any person . . . who is alleged to be in violation of [] an effluent standard or limitation under this chapter.”
Nothing in the text suggests that Congress intended the necessary elements of a citizen-suit claim to be jurisdictional. And in interpreting
Indeed, we have previously rejected the same argument that Corona now advances. In San Francisco Baykeeper v. Cargill Salt Division, we observed that “[s]ome confusion has been caused by the fact that we and the parties have from time to time referred to the issue in this case as whether the Pond is within the ‘jurisdiction’ of the [Clean Water Act].” 481 F.3d 700, 709 n.9 (9th Cir. 2007). “A better statement of the issue would be whether the Pond is within the coverage of the [Act].” Id. We made clear that “the ‘jurisdiction’ of the [Clean Water Act] has nothing to do with the jurisdiction of this court;” rather, the plaintiff‘s “complaint alleged that [the defendant] had violated the
Corona‘s counterarguments are unpersuasive. First, it asserts that the Supreme Court has repeatedly held that “waters of the United States” is a requirement for subject-matter jurisdiction. Not so. Every major Supreme Court case interpreting “waters of the United States” has used the word “jurisdiction” to refer only to federal and state regulatory authority or the waters covered by the Clean Water Act. E.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135 (1985) (referring to “bodies of water over which the Corps has jurisdiction“); Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng‘rs, 531 U.S. 159, 168 (2001) (rejecting the Corps’ claim of “jurisdiction” over “ponds that are not adjacent to open water” (emphasis removed)); Rapanos, 547 U.S. at 731 (plurality) (“[T]he [Clean Water Act] authorizes federal jurisdiction only over ‘waters.‘“); Sackett, 598 U.S. at 664–69 (discussing the EPA‘s and the Corps’ historical understanding of their “jurisdiction“). These cases do not so much as hint that the involvement or non-involvement of waters of the United States dictates subject-matter jurisdiction.
Second, Corona suggests that we previously held in this case that the involvement of waters of the United States is a subject-matter jurisdiction requirement, and accordingly, we are bound by the law-of-the-case doctrine to reach the same result. “The law-of-the-case doctrine generally provides that
In the first appeal in this case, we rejected the district court‘s holding that a citizen-suit “alleging monitoring and reporting violations can only lie if there are also current forbidden discharges.” Inland Empire I, 17 F.4th at 836. While we also stated that the Act “vests district courts with jurisdiction over a citizen suit only upon proof of discharge into the navigable waters of the United States,” we did not explain in what capacity we used the term “jurisdiction.” See id. And as noted, it is well-recognized that this term has multiple meanings. Arbaugh, 546 U.S. at 510. Where our opinion can just as easily be read as establishing that “proof of discharge into the navigable waters of the United States” is necessary to trigger liability under the Clean Water Act, Corona is incorrect that the law-of-the-case doctrine binds us to its preferred reading of a statement made only in passing in our prior opinion. See Trent v. Valley Elec. Ass‘n, 195 F.3d 534, 537 (9th Cir. 1999) (observing that the law-of-the-case doctrine extends only to those aspects of the prior decision that were part of “a decision on the merits“). Accordingly, we conclude that the district court had subject-matter jurisdiction over this case.
Corona also argues that it is entitled to a new trial under
We begin by addressing whether Corona‘s failure to challenge Temescal Creek‘s status as a water of the United States earlier may be excused based on Sackett. A party generally cannot complain about “errors below for which [it] is responsible.” Sovak v. Chugai Pharm. Co., 280 F.3d 1266, 1270 (9th Cir. 2002) (citation modified); cf. Perez v. Discover Bank, 74 F.4th 1003, 1008 (9th Cir. 2023) (recognizing that a party may waive a legal argument through inconsistent conduct). The theory here is that Corona invited any error that occurred by admitting during the summary judgment proceedings that Temescal Creek was a water of the United States. But the rationale for the invited-error doctrine is undermined where a change in law revives a previously foreclosed issue. For example, we have recognized that the invited-error doctrine does not apply where a party fails to challenge a jury instruction in the face of “a ‘solid wall of Circuit authority’ [that] would have rendered an objection futile.” Knapp v. Ernst & Whinney, 90 F.3d 1431, 1438 (9th Cir. 1996) (quoting Robinson v. Heilman, 563 F.2d 1304, 1307 (9th Cir. 1977) (per curiam)).
Of course, not every change in law triggers this exception. The intervening authority must “announce a substantial departure from [the] previous rule of law; intervening decisions that merely clarify the law as it existed at trial will not excuse a failure to object.” 9 Moore‘s Federal Practice – Civil § 51.33 (2026) (citing Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 460 (1st Cir. 1990)). And the party seeking to rely on an intervening change in law needs to raise it as a basis for relief at the earliest procedural opportunity. See Knapp, 90 F.3d at 1438 (noting that the change in law was raised before the district court in a motion for a new trial).
Where these circumstances are present, and the court retains jurisdiction over the case, allowing consideration of a newly available issue does not permit parties to escape the consequences of invited errors or to obtain an unfair “second bite at the apple.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (citation modified). Rather, it avoids “the unhappy result” that would flow from the contrary practice of “encourag[ing] . . . counsel to burden district courts with repeated assaults on the then settled principles out of hope that those principles will be later overturned.” Robinson, 563 F.2d at 1307 (citation modified).
Up through the second trial, our decision in Moses governed whether a tributary like Temescal Creek constitutes a water of the United States. In that case, we understood the question to be “whether a seasonally intermittent stream which ultimately empties into a river that is a water of the United States can, itself, be a water of the United States.” 496 F.3d at 989. Relying primarily on Justice
Moses did not part a sea of hostile precedent for Corona. It created one. It is undisputed that Santa Ana River is a water of the United States and that when Temescal Creek flows, it empties into the Santa Ana River. Given these undisputed facts, it would have been futile for Corona to dispute that Temescal Creek is a water of the United States before Sackett adopted the Rapanos plurality‘s narrower interpretation.
Sackett contravened the law upon which this case was litigated by repudiating Justice Kennedy‘s view in Rapanos and rejecting the notion that impermanent waterbodies can constitute waters of the United States. 598 U.S. at 678. In Moses, we assumed that seasonality did not impede regulating a tributary under the Clean Water Act. 496 F.3d at 990. Sackett‘s emphasis on relative permanence and a continuous surface connection to navigable water suggests otherwise. And by opening up the possibility that Temescal Creek is not a water of the United States even though it is a tributary of the Santa Ana River, the Supreme Court‘s decision justifies allowing Corona to litigate this question
We recognize that Corona admitted that Temescal Creek is a water of the United States. But this admission is different than Corona‘s admissions regarding Temescal Creek‘s connection to the Santa Ana River. The latter are facts related to the natural world; the former is a legal construct. Facts of the natural world are certainly relevant to the inquiry, but whether a geographic feature is a “water of the United States” is at least a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982) (defining a mixed question as one “in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard“). The outcome may have been different had Corona admitted the underlying facts necessary to establish that Temescal Creek is a water of the United States under Sackett‘s legal test. But it did not. As discussed above, Corona disputed Plaintiffs’ assertion that “Temescal Creek is a permanent, long-standing water feature.” Thus, we do not hold Corona to its admission that Temescal Creek is a water of the United States because this admission was contingent on the law that existed at the time the admission was made. Knapp, 90 F.3d at 1438.
For the reasons explained, proof that Temescal Creek is a water of the United States is not required to confer federal subject-matter jurisdiction over this case. Therefore, we affirm the district court‘s denial of Corona‘s post-judgment motion to dismiss. But we reverse the denial of Corona‘s motion for relief under
After Sackett, there was no longer a solid wall of authority barring Corona from viably challenging whether Temescal Creek is a water of the United States. And because Corona raised this newly available challenge at the first opportunity when the district court still retained jurisdiction, it is entitled to relief under
We conclude that remand for further proceedings, rather than amendment of the judgment, is the appropriate remedy because Sackett broadened the scope of factual findings relevant to determining what constitutes a water of the United States, and on the present record, we cannot determine in the first instance whether Temescal Creek satisfies the new standard. Of course, any relief under
On remand, the district court may consider whether it is appropriate to limit the scope of further proceedings to whether Temescal Creek is a water of the United States. See 11 Wright & Miller‘s Federal Prac. & Proc. § 2814 (3d ed.
REVERSED AND REMANDED.6