By Elias E. Guzman

In the recent case Northern California River Watch v. City of Healdsburg (2006) 457 F.3d 1023, the Ninth Circuit offered its first look at “adjacent wetlands” in the post-Rapanos era. The facts of the case take us to the late 1960’s, when the Basalt Rock Company began excavating gravel and sand from land adjacent to the Russian River in northern California. After the mining terminated, the excavated area left a rock quarry pit that measured one half mile in length and one quarter mile in breadth. The pit, which filled with water from the surrounding aquifer, became known as the Basalt Pond (“Pond”), and was located adjacent to the Russian River (“River”). The River was an undisputed navigable water of the United States, and was separated from the Pond by a levee. The distance between the Pond and the River ranged from fifty to several hundred feet.

In 1971, the City of Healdsburg (“City”) built a secondary wastewater treatment plant north of the Pond, without an NPDES permit. Less than a decade later, the City began discharging wastewater into the Pond. The City discharged 420 to 455 million gallons per year, while the Pond’s volume capacity was 450 to 740 million gallons. Thus, the annual outflow from the treatment plant was sufficient to overflow the entire Pond every few years. However, because the Pond did not overflow it could reasonably be inferred that it drained into the surrounding aquifer. The Pond water found its way to the River, via the aquifer, over a period of a few months. This was evidenced by expert testimony that revealed higher concentrations of chloride (a naturally occurring salt in the Pond) had seeped from the Pond into the River at a much higher rate than that found upstream in the River.

Northern California River Watch brought suit against the City alleging that it violated the Clean Water Act (“CWA”) by discharging wastewater into the Pond, which it claimed was a federally protected wetland because of its adjacency to a water of the U.S. The District Court agreed and made findings that the City unlawfully discharged sewage into protected waters in violation of the CWA. The City appealed, but the Ninth Circuit affirmed the District Court’s findings.

On appeal, the first issue addressed was whether the Pond was subject to the CWA because it contained wetlands adjacent to a navigable water of the United States. In Rapanos v. U.S., Justice Kennedy’s 4-4-1 controlling opinion stated that in order to find that an adjacent wetland is a protected water of the U.S., there must be a “significant nexus” to the navigable in-fact waterbody. The City argued that the Pond was an “adjacent waterbody” and not an “adjacent wetland.” The Ninth Circuit court dismissed this distinction as meaningless and pointed to federal regulations that defined wetlands as “those areas that are inundated or saturated by surface or ground water. 33 CFR § 328.3(b). Further, the evidence was clear that beneath the Pond was an aquifer that “supplie[d] the principal pathway for a continuous passage of water” between the Pond and the River. The fact that the quarry, which later resulted in the Pond, was manmade did not alter its qualification for protection under the CWA. Since the Pond contained wetlands, the remaining question was if these “adjacent wetlands” constituted waters of the U.S. A significant nexus exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, or biological integrity of other covered waters more readily understood as ‘navigable.'” If a wetland’s effects on water quality are “speculative or insubstantial” then it is not a navigable water. A mere hydrologic connection should not suffice in all instances. Rather, the connection must support the CWA’s goals and purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The critical fact was that the Pond and River were separated only by a manmade levee so that water from the Pond seeped directly into the adjacent River – this was found to be the significant nexus between wetlands and a navigable water. Furthermore, there was a hydrologic connection when the River overflowed the levee and the two water bodies commingled. In addition to ecological connections, the court found that the chloride chemical connection was compelling. Accordingly, the court held the Pond justified protection under the CWA.

Next, the City argued that the Pond was a waste treatment system that was exempt from the requirements of the CWA pursuant to 33 CFR § 328.3. However, that exception was meant to avoid requiring dischargers to meet effluent discharge standards for discharges into their own closed system treatment ponds. See 45 Fed.Reg 48620-21. The CWA still extends to discharges from treatment ponds. The Pond may be a waste treatment system, but it was not exempt because it was neither self contained nor incorporated in an NPDES permit as part of a treatment system. Thus, the Pond failed to meet the waste treatment system exemption requirements.

Finally, the City argued that the Pond was exempt from the CWA as an ongoing excavation operation, as defined by 33 CFR § 328.3(a). The court found no merit to this claim. Although at one point there were some reclamation activities at the pond, such activities never included excavation of rock or sand from the Pond. Rather, a slurry of sand and sediment was pumped into the Pond. The City also used the Pond as a discharge location for its surface mining operations at other locations, again not considered an “ongoing excavation operation.”

Although at first glance, the mere proximity of the Pond and River seems to control, but the court ultimately relied on the factual record. It demonstrated sufficient chemical, physical, and biological connections, especially the underground hydrologic connection, to establish the significant nexus necessary to invoke the CWA.

Elias Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.