The Ninth Circuit is First to Apply the Recent United States Supreme Court Decision Defining “Waters of the United States”

Land Use Law  

August 2006

In Northern California River Watch v. City of Healdsburg, 2006 U.S. App. LEXIS 20531, the Ninth Circuit considered whether 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. Basalt Pond is part of an active gravel mining operation; however, the Pond has also been used for many years by the City as part of its wastewater treatment process. The City discharges treated wastewater to Basalt Pond for additional treatment and percolation, an activity already regulated by State waste discharge requirements, issued by the North Coast Regional Water Quality Control Board to protect underlying groundwater. Basalt Pond is separated from the Russian River by a levee, and the horizontal distance from Basalt Pond to the Russian River varies between fifty and several hundred feet.

The City argued against Basalt Pond being characterized as a “waters of the United States” on several grounds, including: (1) Basalt Pond is not an “adjacent wetlands” to the Russian River; (2) the “gravel mining” and “waste treatment” exemptions to the definition of “waters of the United States” apply; and (3) Basalt Pond cannot be considered a “waters of the United States” based solely on discharges to groundwater that may be hydrologically connected to surface “waters of the United States,” as Congress specifically determined that such discharges are not subject to the Clean Water Act.

Upholding the lower court's decision that Basalt Pond constitutes a “water of the United States,” the Ninth Circuit applied the “significant nexus” test recently set forth by Justice Kennedy in the U.S. Supreme Court's Rapanos decision. The Ninth Circuit concluded Basalt Pond constitutes an “adjacent wetland” with a significant nexus to the Russian River, and therefore, is a “waters of the United States.” In support of its conclusion, the Ninth Circuit identified evidence that discharges to the Basalt Pond significantly affect the chemical, physical, and biological integrity of the Russian River, including: (1) at least 26% of Basalt Pond's volume annually reaches the Russian River through the groundwater aquifer; (2) Basalt Pond supports an ecosystem of bird, mammal, and fish populations that was integral and indistinguishable from the Russian River ecosystem; and (3) chloride concentrations in the Russian River are increased due to discharges from the Basalt Pond. Finally, the Ninth Circuit specifically denied application of the “gravel mining” and “waste treatment” exemptions to the definition of “waters of the United States.”

Several aspects of the decision are noteworthy. First, the decision illustrates that the outcome of applying the new Rapanos “significant nexus” test to a particular water body depends largely on the nature of the discharge at issue ( i.e ., rate and volume of flow, mobility, specific chemical, physical, and biological impacts). Second, the decision clarifies that in the Ninth Circuit, the Rapanos “significant nexus” test applies to both sections 402 and 404 of the Clean Water Act. Third, the Ninth Circuit was unwilling to directly address whether discharges to groundwater that is hydrologically connected to a navigable-in-fact surface water requires an NPDES permit on the premise that the groundwater is a “tributary” to waters of the United States. For these reasons, Healdsburg is significant to the courts legally bound to follow the Ninth Circuit, and to courts outside of the Ninth Circuit that nonetheless look to that court for guidance.