Ninth Circuit Issues First Wetlands Decision Post-Rapanos

Northern California River Watch v. City of Healdsburg, 2006 WL 2291155 (9th Cir. August 10, 2006)

Allyson L. Vaughn, 3L, University of Mississippi School of Law

The Ninth Circuit Court of Appeals recently affirmed a lower court decision that a pond used by a California city to discharge wastewater constitutes “navigable waters of the United States” subject to the Clean Water Act (CWA). This decision marks the first circuit court application of the Supreme Court’s ambiguous 4-4-1 opinion in Rapanos v. U.S.1

Basalt Pond
Basalt Pond, located in California near the Russian River, was created when a large gravel mining pit filled with surface water. The pond, which contains 58 acres of surface water and has a volume of 450 to 740 million gallons, is separated from the river by a levee.

The City of Healdsburg discharges wastewater from a secondary waste treatment plant into Basalt Pond. The yearly volume of wastewater discharged into the pond is 420 to 455 million gallons. Because the annual outflow from the sewage plant is almost equal to the total volume of the pond, Basalt Pond should overflow its banks on a routine basis. It does not do so, because the pond drains into an aquifer which seeps directly into the Russian River over a period of a few months.2 Healdsburg did not possess a National Pollutant Discharge Elimination System (NPDES) permit authorizing its discharge of wastewater into the pond, but it did have a state water emission permit and permission from Syar Industries, Inc., the owner and manager of the pond.

District Court Decision
The objective of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”3 To achieve this goal, the CWA requires individuals seeking to discharge pollutants into the “navigable waters of the United States” to obtain a NPDES permit from the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, or an authorized state agency.4 “Navigable waters” are defined as “waters of the United States, including the territorial sea.”5 The issue before the court was whether Basalt Pond is a water of the United States and subject to the permitting requirements of the CWA.

The district court held that because the river is navigable, the adjacent wetlands, including Basalt Pond, are also covered by the CWA.6 The court’s decision was based on two Supreme Court decisions that preceded Rapanos, including one holding that found a “significant nexus” was required for the exercise of federal jurisdiction under the CWA.

The district court found a significant nexus based on a number of connections that exist between the two bodies of water. First, Basalt Pond and the Russian River are hydrologically connected. Water from the pond flows directly into the adjacent river over the man-made levee and drains into an aquifer that in turn flows into the river. In addition to the hydrological connection, the district court also found ecological connections including common fish, bird, and mammal populations. Finally, the chemical connection between the river and the pond is indisputable. The concentration of chloride in the groundwater between the pond and the river is drastically increased as a direct result of sewage drainage into the pond.

Ninth Circuit’s Application of Rapanos
In Rapanos, the Supreme Court split right down the middle voting 4-4-1. The plurality opinion, authored by Justice Scalia, argued that only “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’” are protected under the CWA.7 Justice Stevens, writing for the four dissenters, would have provided for expansive protection finding even tributaries of navigable waters to be protected under the CWA. However, Justice Kennedy’s opinion is controlling because, although it did not receive support from more than half of the judges, it is based on the narrowest legal grounds.

Justice Kennedy argued that wetlands constitute navigable waters if the wetlands have a “significant nexus” to “navigable-in-fact waterways.”8 Kennedy further explained that a significant nexus exists when the wetlands, either alone or in combination with other lands in the area, “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”9 Where a significant nexus exists, jurisdiction under the Clean Water Act exists.

The Ninth Circuit affirmed the district court’s finding that a significant nexus exists between the Russian River and Basalt Pond. The court held that there was sufficient evidence of hydrological and ecological connections and physical and chemical impact to support the exercise of jurisdiction. The court rejected Healdsburg’s arguments that two CWA exceptions applied in this case. Healdsburg first argued that the CWA regulations expressly exclude “waste treatment systems” from “waters of the United States.”10 The court rejected this claim because the pond is not part of a treatment system included in an NPDES permit. Healdsburg also argued that its operation qualified for the excavation operation exception. CWA regulations exclude from “waters of the United States” any “waterfilled depression” that serves as part of an ongoing excavation operation.11 The court rejected this argument because evidence was presented that indicated all excavation operations at Basalt Pond had been discontinued.

Conclusion
As a result of the ruling, Healdsburg must acquire an NPDES permit prior to continuing the discharge of wastewater into the pond. Should the city fail to do so, the city could face civil and criminal liability for violating the CWA. Ultimately, this decision will require Healdsburg to reduce the level of chlorine in the water by treating it prior to discharge.

Endnotes
1. 126 S.Ct. 2208 (2006).
2. Northern California River Watch v. City of Healdsburg, 2006 WL 2291155 at *2 (9th Cir. August 10, 2006).
3. 33 U.S.C. § 1251(a).
4. Id. § 1311(a)..
5. Id. § 1362(7).
6. 33 C.F.R. § 328.3(a)(7).
7. Rapanos, 126 S. Ct. 2208, 2226 (2006).
8. Id. at *2240.
9. Id. at *2248.
10. 33 C.F.R. § 328.3(a)(8).
11. Id. § 328.3(a).