Summary of a Recent
Judicial Development in
Clean Water Act

Rock Quarry Pit and Surrounding Area Adjacent
to Navigable River Found to Be Wetlands

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007), the United States Ninth Circuit Court of Appeals affirmed the district court's decision, which had granted judgment in favor of the plaintiff environmental group. The plaintiff brought action pursuant to the Clean Water Act (CWA) citizen suit provision, charging the city with illegally discharging pollutants from a facility into a nearby pond that eventually drained into navigable waters. The court held that the pond constituted a navigable water body for CWA purposes and that the city's activities were not exempt from CWA regulation.

Background

Northern California River Watch (River Watch) brought action against the City of Healdsburg for allegedly violating the CWA. Id. at 995. River Watch claimed that the city discharged pollutants from its waste treatment plant into waters covered by the CWA without first obtaining a permit. Id. The city discharged the pollutants into Basalt Pond, "a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River." Id. River Watch asserted that Basalt Pond was "subject to the CWA because the Pond, containing wetlands, border[ed] additional wetlands that [were] adjacent to a navigable river of the United States." Id. Following the United States Supreme Court's holding in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the district court held that the city's discharges into the pond constituted discharges into waters of the United States. Id. Shortly after the district court issued its ruling, the Supreme Court narrowed the scope of Riverside Bayview Homes in Rapanos v. United States, 547 U.S. 715 (2006). Id. In Rapanos, "the controlling opinion [was] that of Justice Kennedy who said that to qualify as a regulable water under the CWA the body of water itself need not be continuously flowing, but that there must be a 'significant nexus' to a waterway that is in fact navigable." Id. Following the Supreme Court's issuance of Rapanos, the city appealed the district court's ruling. Id.

Arguments

The city argued that Basalt Pond did not constitute a water of the United States, and therefore was not subject to regulation under the CWA. In the alternative, the city argued that either the waste treatment or excavation exception to the permit requirement under the CWA excepted its discharges into Basalt Pond from CWA regulation. Id. at 1001.

River Watch requested that the court affirm the district court's ruling.

Analysis and Holdings

The key issue before the court was whether Basalt Pond and the adjacent wetlands were isolated waters or wetlands "within the meaning of the regulations and within the scope of Riverside Bayview Homes and Rapanos." Id. at 997. The record described the topography at issue as follows:

[T]he Russian River and surrounding area, including the Pond itself, rest on top of a vast gravel bed extending as much as sixty feet into the earth. The gravel bed is a porous medium, saturated with water. Through it flows an equally vast underground aquifer. This aquifer supplies the principal pathway for a continuous passage of water between Basalt Pond and the Russian River. Beneath the surface, water soaks in and out of the Pond via the underground aquifer. This action is continuous, 24 hours a day, seven days a week, 365 days a year.
Id.

According to CWA regulations, a wetland is defined as "those areas that are inundated or saturated by surface or groundwater." Id. (quoting 33 C.F.R. § 328.3(b)). After comparing the record to the regulations, the court held that Basalt Pond and the adjacent wetlands were regulable under the CWA. Id. at 998. The only remaining question was whether "Basalt Pond [was] a 'water of the United States' because it [was] sufficiently adjacent to the navigable Russian River to confer jurisdiction or alternatively because it ha[d] a substantial nexus to the River." Id. Because the pond was "part of a larger wetland that [was] 'adjacent' to the River within the meaning of Riverside Bayview Homes" and there was "a 'substantial nexus' present under the analysis of Justice Kennedy in Rapanos," the court held that there was "a substantial nexus between the Basalt Pond and covered waters sufficient to confer jurisdiction under the [CWA] . . . ." Id. at 1000.

The city argued that either the waste treatment or excavation exceptions to the permit requirement under the CWA excepted its discharges into Basalt Pond from CWA regulation. Id. at 1002. However, the court held that the excavation exception did not apply because it only applied to bodies of water that were currently and directly under active excavation. Id. Additionally, the court held that the waste treatment exception did not apply because the pond was not self-contained or incorporated into the National Pollutant Discharge Elimination System permit as part of a treatment system. Id.

The case was decided on August 6, 2007.