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Ninth Circuit, In First Case Applying Supreme Court’s Rapanos Decision, Holds NPDES Permit Required for Sewage Discharge to Excavated Pit

August 16, 2006

In its first opportunity to apply the United States’ closely divided decision in Rapanos v. United States, 126 S. Ct. 2208 (2006), the Ninth Circuit Court of Appeals has held that the City of Healdsburg, California is required to obtain a National Pollution Discharge Elimination System (NPDES) permit to discharge sewage into a rock quarry pit filled with water from an aquifer adjacent to the Russian River. Northern California River Watch v. City of Healdsburg, --- F.3d ----, 2006 WL 2291155 (C.A. 9 (Cal.)). The Ninth Circuit held that Justice Kennedy’s opinion in the 4:4:1 plurality decision in Rapanos is now the controlling law in this area and that to qualify as a navigable water under the Clean Water Act (CWA), 33 U.S.C §§ 1251 et seq., a body of water itself need not be continually flowing but that there must be a “significant nexus” to a waterway that is in fact navigable. Id. Applying that test to the trial court’s findings of fact in Healdsburg, the Court concluded that the pit, known as Basalt Pond, and its wetlands possess a “significant nexus” to waters that are navigable in fact and, therefore, trigger the Clean Water Act because the Pond waters seep directly into the Russian River, an undisputedly navigable water. Id.

Basalt Pond

Basalt Pond was created in approximately 1967 when the Basalt Rock Company began excavating gravel and sand from land near the Russian River. The resultant pit filled with water up to the line of the water table of the surrounding aquifer. The half-mile long, quarter mile wide Pond lies along the west side of the Russian River, separated from the River by a levee. The Russian River is a navigable water of the United States under any definition. Usually, there is no surface connection between the Pond and the River because the levee prevents the Pond from being inundated by high river waters in the rainy season. Id.

There is, however, a sub-surface interconnection between the Russian River and Basalt Pond. Both rest on top of a vast gravel bed up to sixty feet deep. The gravel bed is porous and saturated with water. An aquifer flows through the bed and water passes continuously between Basalt Pond and the Russian River. Id.

In 1971, Healdsburg built a secondary waste-treatment plant on Basal Pond’s north side about eight hundred feet from and west of the Russian River. In 1978, Healdsburg began discharging sewage into Basalt Pond. The annual outflow from the sewage plant is sufficient to fill the entire Pond every one to two years. Basalt Pond would overflow if not for the fact that the Pond drains into the surrounding aquifer. Id.

Pond water in the aquifer finds its way to the River over a period of a few months and seeps directly into the River along as much as 2,200 feet of its banks. Not all the sewage in the wastewater reaches the River. The wastewater is partially cleansed as it passes through the bottom and sides of the Basalt Pond. Healdsburg refers to this process as “polishing” or “percolation.” The wetlands around Basalt Pond also help cleanse the outflow by passing the sewage effluent through the wetlands sediment. The filtration is effective in reducing biochemical oxygen demand and removing some pollutants, but the filtration is not perfect. Healdsburg has not obtained an NPDES permit to discharge sewage in to Basalt Pond. Id.

The Rapanos Decision

The leading case in determining Clean Water Act jurisdiction is the recently decided Rapanos v. United States, 126 S. Ct. 2208 (2006). In this case, the Supreme Court, by a 4:4:1 plurality, remanded to the Sixth Circuit the issue of whether the U.S. Army Corps of Engineers (“Corps”) exceeded its statutory authority under the Clean Water Act by requiring property owners to acquire permits before dredging and filling certain wetlands. The case presented the Court with the opportunity to determine whether the wetlands at issue were subject to the United States’ jurisdiction under the Clean Water Act. The Court’s decision advanced conflicting tests for determining whether wetlands are protected by federal law.
Justice Scalia’s plurality decision took a narrow interpretation of “waters of the United States,” and would remove many wetlands from the Corps’ Clean Water Act jurisdiction by requiring a continuous surface water connection. The plurality opinion failed, however, to command a majority, and was specifically rejected in Justice Kennedy’s concurrence. Justice Kennedy found the plurality interpretation of “waters of the United States,” as inconsistent with the language and purpose of the Clean Water Act, and advanced a test that would require the Corps to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis. Rapanos, 2006 WL 1667087 at 31. Under Justice Kennedy’s “significant nexus” test, “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Under Justice Kennedy’s test, the requisite “nexus” must be assessed in terms of the Clean Water Act’s goals and purpose. Id. at 30. Justice Kennedy determined a remand was necessary since the Sixth Circuit had not examined the presence of the appropriate “nexus” in Rapanos and Carabell. For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

The Healdsburg Decision

The Ninth Circuit began its analysis by considering whether Basalt Pond and its surroundings are “wetlands adjacent to waters” within the meaning of the Army Corps of Engineers’ regulations defining “waters of the United States” under the Clean Water Act. Since Basalt Pond contains wetlands, the Court quickly found that the only remaining question is whether those wetlands constitute “waters of the United States” subject to the CWA. Northern California River Watch v. City of Healdsburg, --- F.3d ----, 2006 WL 2291155. On this point, the Court examined the Supreme Court’s decisions in Riverside Bayview, SWANNC, and Rapanos and held, with limited analysis, that Justice Kennedy’s opinion in Rapanos provides the controlling rule of law on when wetlands constitute navigable waters. Id.[1]

The Court then emphasized that Justice Kennedy made clear that Riverside Bayview and SWANCC establish the framework for the “navigable waters” inquiry but that Rapanos did not explicitly or implicitly overrule either case. Within this framework, the Ninth Circuit proceeded to apply the “significant nexus” test according to Justice Kennedy’s opinion. Justice Kennedy explained that a “mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.” Rapanos, 126 S. Ct. at 2251. Rather, the “required nexus must be assessed in terms of the statute’s goals and purposes,” which are to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id. at 2248 (internal quotations and citations omitted).

Applying these principles in the “significant nexus” test, the Ninth Circuit found in Healdsburg that the critical fact is that the Pond and Russian River are separated only by a porous man-made levee so that water from the Pond seeps directly into the adjacent River. The Court further found that there is an actual surface connection between Basalt Pond and the Russian River when the River overflows that levee and the two bodies of water commingle. Therefore, the Ninth Circuit affirmed the District Court’s findings of fact, concluded that the adjacent wetland of Basalt Pond has a significant nexus to the Russian River, and held that the City’s wastewater discharges into Basalt Pond without a permit violate the CWA.

The Court then concluded by rejecting the City’s remaining arguments that it was exempt from the CWA. First, the Court held that the City’s alleged “wastewater treatment system” exemption was inapplicable. The Ninth Circuit held that such exemptions are narrowly construed. The wastewater treatment system exemption exempts either water systems that do not discharge into waters of the United States or waters incorporated in an NDPES permit as part of a treatment system. The Court held that Basalt Pond does not fall under this exemption because it is neither self-contained nor is it incorporated in an NPDES permit as part of a treatment system.

Second, the City argued that Basalt Pond is exempt from protection under the CWA because it is the site of an ongoing excavation operation. This exemption arises under ACOE regulations which exclude active gravel pits from the definition of “waters of the United States”. The Ninth Circuit affirmed the District Court’s holding that this exemption is inapplicable to Basalt Pond because all excavation operations at the Pond have been abandoned.

Conclusion

Healdsburg is the first Ninth Circuit case to apply Rapanos and provides an initial indication of how that Circuit will read that decision’s disparate opinions. There are, however, a myriad of factual scenarios being litigated which raise issues about whether a particular waterbody has a significant nexus to waters of the United States leaving room for other outcomes depending on those facts. Also, other circuit courts may not all agree with the Ninth Circuit’s reliance on Justice Kennedy’s opinion in Rapanos. As Justice Stevens predicted, given the Supreme Court’s fractured decision in Rapanos, many more courts will likely be called upon to decide cases involving interpretations of federal Clean Water Act jurisdiction.

Please contact Jeff Kray for additional information.

[1] Citing Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”).

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