The Ninth Circuit Expands Already Broad “Waters of the United States” Definition

August 2007

Shortly after the U.S. Supreme Court's 2006 decision redefining waters subject to the Clean Water Act in Rapanos v. United States, the Ninth Circuit became the first court to apply the new rationale in Northern California River Watch v. City of Healdsburg, 457 F.3d 1023, 1032 (9th Cir. 2006). There, the Ninth Circuit held that Justice Kennedy's concurrence in Rapanos was the controlling rule of law, and that the Clean Water Act no longer applied to waters that did not share a “significant nexus” with traditional navigable waters. The Ninth Circuit subsequently considered rehearing petitions by the parties, leading to speculation that the panel would narrow its previous opinion. After almost one year since the original decision was issued, yesterday, the Court withdrew the original decision and issued a heavily re-written and more expansive opinion. Northern California River Watch v. City of Healdsburg, 2007 WL 2230186 (August 6, 2007).

The case began when River Watch argued that the City of Healdsburg violated section 402 of the Clean Water Act by discharging treated wastewater from a waste treatment plant into Basalt Pond without a federal National Pollutant Discharge Elimination Permit (“NPDES”) permit. The City discharges treated wastewater to Basalt Pond for further treatment and percolation, an activity already regulated by the local Regional Water Quality Control Board. A levee separates Basalt Pond from the Russian River by fifty feet in some areas, and several hundred feet in others. The City argued that the Clean Water Act did not apply to discharges into Basalt Pond because it was not a “water of the United States,” even if the Pond contained and was surrounded by wetlands.

In the revised opinion, the Ninth Circuit continues to hold that Justice Kennedy's concurrence in Rapanos represents the controlling rule of law, though there are currently several disputes pending in various federal courts throughout the country on this point. The Ninth Circuit also preserved its prior holding that Basalt Pond shared a “significant nexus” with the navigable Russian River because the Pond supports the same ecosystem as the River, discharges 26% of its water to the Russian River via a direct groundwater connection, and increases the chloride concentrations in the River. As such, Basalt Pond was found to be a “waters of the United States.” This decision illustrates that the outcome of the “significant nexus” test depends almost entirely on the nature of the water bodies and discharges at issue ( i.e ., rate and volume of flow, mobility, specific chemical, physical, and biological impacts).

The decision also clarifies that the “significant nexus” test applies to both sections 402 and 404 of the Clean Water Act. Industrial dischargers, publicly-owned treatment works, and other facilities with NPDES permits issued under section 402 in California should pay careful attention as the “significant nexus” cases unfold in trial courts, even if those case only involve “dredge and fill” 404 permits. A number of critical issues remain to be determined, including burden of proof, level of proof required, and importance of ecological or other non-water quality impacts.

Crucial in this revised opinion is the Court's reversal of course on its prior holding that “mere adjacency” is insufficient basis for Clean Water Act jurisdiction; instead, the Court now holds that the Clean Water Act applies if a water has either a significant nexus with a navigable water or is adjacent to a navigable water. This means that, in the nine Western states making up the Ninth Circuit, wetlands adjacent to navigable waters are automatically “waters of the United States,” regardless of any actual impact on the navigable water. Consistent with the recent Corps/EPA guidance document issued in June 2006, the Court held that wetlands adjacent to navigable waters must be assumed to possess the required significant nexus.

Finally, the Court held that an underground connection can play a role in the “significant nexus” inquiry. The view that the Clean Water Act regulates discharges to groundwater has previously been rejected by other circuit courts, see, e.g ., Exxon Corp. v. Train , 554 F.2d 1310 (5th Cir. 1977), and it is unclear at this point how far advocacy groups will try to expand the Ninth Circuit's opinion on this point.