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Clear as Mud: Newest Ninth Circuit Case Interpreting Rapanos Test for Clean Water Act Jurisdiction Offers Little Clarity

September 12, 2007

Since the United States Supreme Court’s landmark 2006 decision in Rapanos v. United States[1] federal courts and agencies have struggled to determine which wetlands, ponds, streams, and other water bodies should be regulated under the Clean Water Act (CWA).[2] The resulting uncertainty has made development more difficult in many coastal and other water-related areas. A recent case from the Ninth Circuit demonstrates the problem, but offers few solutions, ensuring that the Corps and EPA will continue to make CWA jurisdictional determinations on a case-by-case basis. As a practical matter, for many small and seasonal streams and for tributaries and wetlands that are not relatively permanent, property owners will need to assess how likely their projects are to negatively impact water quality in order to determine whether they need to apply for federal permits for those projects.

In Northern California River Watch v. City of Healdsburg,[3] issued on August 6, 2007, the Ninth Circuit Court of Appeals took the unusual step of withdrawing and replacing its own decision of a year earlier[4] with a new decision in an attempt to clarify the ways in which courts and agencies in that circuit should apply Rapanos. Under the new Healdsburg decision, the City of Healdsburg California is required to obtain a National Pollution Discharge Elimination Permit (NPDES) to discharge wastewater to Basalt Pond, a man-made pond in a former rock quarry pit adjacent to the Russian River and may be subject to civil penalties and the plaintiff’s attorneys’ fees for violating the CWA.[5] The Ninth Circuit issued the new decision to emphasize the physical interrelationship between Basalt Pond and the Russian River and to expressly distinguish the Healdsburg case from another recent Ninth Circuit decision, San Francisco Baykeeper v. Cargill Salt Division,[6]where it refused to extend federal CWA jurisdiction to a pond next to a slough flowing into San Francisco Bay by narrowly construing the phrase “adjacent wetlands” to exclude ponds.

In this latest decision, the Ninth Circuit again found that Justice Kennedy’s concurring opinion in Rapanos [7] is the “controlling rule of law” for determining CWA jurisdiction. Relying on Justice Kennedy’s broader “significant nexus” test in Rapanos keeps the Ninth Circuit at odds with the First Circuit Court of Appeals[8] and with a June 2007 joint guidance memorandum[9] in which the Corps and the EPA stated that their agency staff may determine CWA jurisdiction under both the Kennedy test or the narrower “continuous surface connection” test that Justice Scalia articulated in his plurality opinion in Rapanos.[10]

Background

Basalt Pond was created in approximately 1967 when the Basalt Rock Company began excavating gravel and sand from land near the Russian River.[11] 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.[12]

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.[13]

In 1971, Healdsburg built a secondary waste-treatment plant on Basalt Pond’s north side about eight hundred feet from and west of the Russian River. In 1978, Healdsburg began discharging effluent from the treatment plant 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.[14]

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 pollutants in the wastewater reach 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 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 never obtained an NPDES permit to discharge the effluent from its wastewater treatment plant into Basalt Pond.[15]

The Rapanos Decision

The CWA’s primary objective is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[16] To achieve this objective, the CWA strictly prohibits discharging pollutants into the “navigable waters of the United States” without an NPDES permit from the EPA.[17] After Congress passed the CWA, an issue arose concerning the extent to which wetlands adjacent to navigable waters constitute “waters of the United States.”[18] The Supreme Court subsequently confirmed in United States v. Riverside Bayview Homes[19] that waters of the United States subject to federal regulation include tributaries of traditionally navigable waters and wetlands adjacent to navigable waters and their tributaries.

Rapanos v. United States is one of the leading Supreme Court cases, and one of the most recent, interpreting the scope of CWA jurisdiction.[20] In Rapanos, the Supreme Court, by a 4:4:1 plurality, remanded to the Sixth Circuit the issue of whether the Corps exceeded its statutory authority under the CWA by requiring property owners to acquire permits before dredging and filling certain wetlands.[21] The case presented the Court with the opportunity to determine whether the wetlands at issue were subject to the United States’ CWA jurisdiction. Rapanos also presented the Court with the opportunity to clarify its holding in Solid Waste Agency of Northern Cook County v. U.S. (SWANCC),[22] which had caused uncertainty among regulators, courts, and the regulated community about the breadth of the CWA’s jurisdiction. Unfortunately, the Court’s decision in Rapanos did little to clarify CWA jurisdiction and, in fact, advanced conflicting tests for determining whether wetlands are protected by federal law.

Justice Scalia’s plurality decision in Rapanos narrowly interpreted “waters of the United States,” and would remove many wetlands from the Corps’ CWA jurisdiction by requiring a continuous surface water connection.[23] 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” was inconsistent with the CWA’s text and purpose, and he advanced a test that would require the Corps to establish a “significant nexus” between wetlands and navigable waters on a case-by-case basis.[24] For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

Post-Rapanos Circuit Decisions, Regulatory Guidance, and Proposed Legislation

Lower courts are divided over how to interpret the Rapanos decision. Three Circuit Courts have addressed the issue. The Seventh and Ninth Circuits have concluded that the “significant nexus” analysis in Justice Kennedy’s Rapanos concurrence provides the controlling test for determining the jurisdictional boundary of the United States’ authority over water bodies and wetlands.[25] In contrast, the First Circuit departed from the other Circuits’ approach and held that the United States could assert jurisdiction over alleged CWA violations by applying either the “significant nexus” test or by meeting the standard set forth in Justice Scalia’s Rapanos plurality opinion.[26] For further analysis of the post-Rapanos Circuit decisions see Federal Circuits Split on Application of Supreme Court’s Rapanos Decision.

The executive and legislative branches of the federal government have also weighed in post-Rapanos. On June 5, 2007, the Corps and the EPA issued a joint guidance memorandum (guidance) to help personnel at those agencies determine when to exercise CWA jurisdiction over certain wetlands and related waterbodies addressed in Rapanos.[27] Meanwhile, federal CWA jurisdiction is again at issue in Congress under a bill that would assert authority under the CWA to the maximum extent allowed under the Commerce Clause. For further analysis of the post-Rapanos regulatory and legislative efforts, see Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.

Healdsburg Redux

After the Ninth Circuit issued its initial decision in August 2006, Northern California River Watch and the United States filed motions for reconsideration and the City of Healdsburg and other interested parties[28] filed petitions for rehearing and for rehearing en banc. While those motions were pending, the Ninth Circuit issued its decision in Cargill. Comparing the Ninth Circuit’s two Healdsburg decisions reveals that the changes from the old to the new decision arise from and emphasize the factual distinctions between the isolated pond in Cargill and the hydrologically continuous pond and wetlands in Healdsburg. The changes between the two Healdsburg decisions also emphasize the legal distinctions between isolated ponds, which the Ninth Circuit holds under SWANCC[29] are not within the United States’ CWA jurisdiction,[30] and wetlands adjacent to navigable waters, which the Ninth Circuit holds are within the United States’ jurisdiction as further discussed below.

The new Healdsburg decision confirms the Ninth Circuit’s reliance on Justice Kennedy’s concurrence as the controlling rule of law for cases involving wetlands adjacent to waters that are navigable in fact and their tributaries.[31] The Ninth Circuit first considered whether Basalt Pond and its wetlands are “isolated waters” or whether they constitute covered wetlands within the meaning of the Corps’ CWA regulations[32] and within the scope of the Supreme Court’s decisions in United States v. Riverside Bayview Homes, Inc.[33] and Rapanos. On that threshold issue, the Ninth Circuit concluded that Basalt Pond and its surrounding area qualify as wetlands under the regulatory definition and are, therefore, subject to regulation under the CWA.[34] In reaching that conclusion, the Ninth Circuit distinguished the Healdsburg case from its decision in Cargill, on the basis that the ponds were not wetlands.[35]

The Ninth Circuit then analyzed whether Basalt Pond is a “water of the United States” under Rapanos either “because it is sufficiently adjacent to the navigable Russian River to confer jurisdiction or alternatively because it is has a substantial nexus to the River.”[36] In light of Rapanos, the Ninth Circuit concluded in Healdsburg that “Basalt Pond possesses such a ‘significant nexus’ to waters that are navigable in fact, not only because the Pond waters seep into the navigable Russian River, but also because they significantly affect the physical, biological, and chemical integrity of the River.”[37]

Conclusion

Although the new Healdsburg decision attempts to clarify the confusion that Rapanos and its legal and regulatory progeny have created, it nonetheless raises practical problems for Corps and EPA staff operating in the Ninth Circuit. The decision keeps the Ninth Circuit at odds with the Corps’ and EPA’s guidance memorandum stating that their agency staff may determine CWA jurisdiction under either the Kennedy “significant nexus” test or the “continuous surface connection” test that Justice Scalia articulated in his plurality opinion in Rapanos. The new decision also draws a bright, but factually difficult to apply, line between isolated ponds and adjacent wetlands.

Thus, property owners who have wetlands and ponds on their land may face difficulties in discerning whether such waterbodies are subject to the CWA’s federal jurisdictional reach. To assess whether to apply for a permit, property owners will need to determine the likelihood that the project has, at minimum, a “significant nexus” to navigable water. For work in traditional navigable waters, i.e. lakes, rivers, and streams used in interstate commerce the answers are clear: permits are required. At the other end of the spectrum, for truly isolated ponds the answer is also clear, no federal permit is required and the Corps and EPA will not assert jurisdiction. However, according to the Corps’ and the EPA’s joint guidance memo the agencies may assert federal jurisdiction over non-navigable tributaries and adjacent wetlands that are not relatively permanent. Property owners with these waterbodies must choose between applying for a CWA permit, a potentially very time-consuming and expensive process, or risk enforcement action if the Corps or EPA determine they have jurisdiction. Before making that decision, such property owners should seek scientific and legal advice about the post-Rapanos landscape as it applies to the facts of their property and the intended project.

For more information about Marten Law Group’s water quality practice and the post-Rapanos legal environment, please contact Jeff Kray.

[1] 126 S. Ct. 2208 (2006).

[2] 33 U.S.C. §§ 1251 et seq.

[3] Northern California River Watch v. City of Healdsburg, 04-15442 (9th Cir., August 6, 2007). A copy of the decision is here.

[4] 457 F. 3d 1023 (9th Cir. 2006). For more about the Ninth Circuit’s initial Healdsburg decision, see this newsletter’s report “Ninth Circuit, In First Case Applying Supreme Court’s Rapanos Decision, Holds NPDES Permit Required for Sewage Discharge to Excavated Pit.”

[5] Northern California River Watch v. City of Healdsburg, 04-15442, Slip Opinion at 9382.

[6] 481 F.3d 700 (9th Cir. 2007). For further analysis of the Cargill decision see Ninth Circuit Declines to Extend CWA Jurisdiction to “Adjacent Waters” Other Than Wetlands.

[7] 126 S. Ct. 2208 (2006).

[8] See this newsletter’s report “Federal Circuits Split on Application of Supreme Court’s Rapanos Decision.”

[9] A copy of the guidance memo is here.

[10] See this newsletter’s report “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.”

[11] Healdsburg Slip Opinion at 9375.

[12] Id. at 9376.

[13] Id.

[14] Id.

[15] Id.

[16] 33 U.S.C. § 1251(a).

[17] 33 U.S.C. § 1311(a).

[18] Healdsburg Slip Opinion at 9378.

[19] 474 U.S. 121 (1985).

[20] 126 S. Ct. 2208.

[21] Id.

[22] 531 U.S. 159 (2001).

[23] Id. at 2225.

[24] Id. at 2249.

[25] United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) and Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).

[26] United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).

[27] See Corps and EPA Responses to the Rapanos Decision, Key Questions for Guidance Release (Key Questions Memo).

[28] Including the Pacific Legal Foundation, The American Forest & Paper Association, and Syar Industries.

[29] 531 U.S. 159 (2001).

[30] 481 F.3d 700 (9th Cir. 2007).

[31] Healdsburg Slip Opinion at 9374.

[32] 33 C.F.R. 328.3(a)(1),(4),(7).

[33] 474 U.S. 121 (1985).

[34] Healdsburg Slip Opinion at 9379.

[35] 481 F.3d 700 (9th Cir. 2007). For further analysis of the Cargill decision see Ninth Circuit Declines to Extend CWA Jurisdiction to “Adjacent Waters” Other Than Wetlands.

[36] Healdsburg Slip Opinion at 93749.

[37] Healdsburg Slip Opinion at 9374-5.

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