Member Pipeline - Legal - Alert (Leg 06-08)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | September 13, 2006 |
| Subject: | NINTH CIRCUIT HOLDS WASTEWATER TREATMENT POND COVERED BY CWA CONTRARY TO RECENT SUPREME COURT RULING |
| Reference: | Legal Alert 06-08 |
Printer friendly versionOn August 10, 2006, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) ruled that member agency the City of Healdsburg, CA violated the Clean Water Act (CWA) by discharging treated wastewater from its treatment plant into a holding pond without obtaining a National Pollutant Discharge Elimination System (NPDES) permit. The court’s reasoning in Northern California River Watch v. City of Healdsburg (Healdsburg) is contrary to precedent recently set forth in a number of Supreme Court cases interpreting the CWA, and has caused both parties in the case as well as the federal government to ask the Ninth Circuit for a reconsideration or clarification of the decision. Healdsburg is the first appellate court to interpret the Supreme Court’s fractured June 19 decision in Rapanos et ux., et al. v. United States (Rapanos) and has thus garnered significant attention. For more information on the Rapanos decision, please see http://www.nacwa.org/private/legalalerts/leg06-05.cfm
NACWA used its Targeted Action Fund (TAF) to participate in this case as amicus curiae in support of the City, along with the California Association of Sanitation Agencies (CASA) and the Association of California Water Agencies (ACWA). NACWA filed an amicus curiae brief on behalf of the City in June 2004.
This Alert summarizes the Healdsburg decision and discusses its implications for NACWA member agencies, particularly those located in the Ninth Circuit. This Alert also outlines NACWA’s next steps in this litigation, including the possibility of a rehearing. A copy of the decision is available on NACWA’s Member Pipeline at http://www.nacwa.org/private/littrack/#healdsburg. As always, if you have any questions regarding this legal decision or NACWA’s other legal activities, please contact NACWA’s General Counsel Alexandra Dunn by e-mail at adunn@nacwa.org or by telephone at 202/533-1803.
I. Background
The Healdsburg case involves a body of water knows as “Basalt Pond,” a rock quarry pit filled with water and located next to the Russian River. The pond was created in 1967 when a local rock company excavated it for gravel and sand. The pit eventually filled with water up to the line of the water table of the surrounding aquifer, containing 58 acres of surface water and separated from the Russian River by a levee. In 1971, the City of Healdsburg built a secondary waste treatment plant on a site located on the north side of Basalt Pond, and located about 800 feet from the Russian River. In 1978, the City began to discharge treated wastewater into the pond. The water discharged into the pond is further cleansed as it goes through a process of polishing and percolation, passing through the sides and bottom of Basalt Pond into an underground aquifer before it enters the Russian River. Although the City received both a state water emission permit and permission from the owner and land manager of the pond, it did not receive an NPDES permit. [1]
The lawsuit was initiated when the City was sued by Northern California River Watch (River Watch), a non-profit environmental organization, which claimed that the City was violating the CWA by discharging into Basalt Pond without first obtaining an NPDES permit. River Watch alleged that Basalt Pond was covered by the CWA because it was immediately adjacent to the Russian River, and because the pond was connected to the river via an underground aquifer. The City and it supporters, including NACWA, argued that the pond could not fall under the jurisdiction of the CWA solely based on a groundwater connection, and that even if it did the “waste treatment exception” under the U.S. Environmental Protection Agency’s (EPA’s) regulations eliminated the need for an NPDES permit.[2]
II. Summary of the Healdsburg Decision
In its August 10 opinion, the Ninth Circuit concluded that there was enough of a “significant nexus” between Basalt Pond and its surrounding wetlands with the Russian River to find that the pond was an adjacent wetlands to a “waters of the United States,” and thus fell within the CWA. The court consequently found the City of Healdsburg to be in violation of the CWA because it did not obtain an NPDES permit before it began discharging into the pond. In reaching this conclusion, the court made a number of important findings that may have a significant impact on future CWA cases.
A. Justice Kennedy’s Concurring Opinion is the Controlling Law From Rapanos
As the first appellate court to interpret Rapanos, the Ninth Circuit had to decide the controlling law.[3] The court held that Justice Kennedy’s concurring opinion in Rapanos provides the controlling rule of law because it represents the position on the narrowest grounds taken by the five justices who concurred in the Rapanos ruling. Accordingly, the court used the “significant nexus” test as set forth by Justice Kennedy, instead of the test set forth by the plurality which focuses on the permanency of a body of water and whether an alleged wetlands area has a continuous surface connection to a permanent body of water. The Ninth Circuit’s choice of Justice Kenney’s test is of critical importance in the Healdsburg decision as Basalt Pond has no continual surface connection to the Russian River, and thus under the plurality opinion would not be covered by the CWA.
B. Underlying Groundwater Can Provide a “Significant Nexus” in Adjacent Wetlands Cases
Using Justice Kennedy’s approach, the court held that there was enough of a “significant nexus” between Basalt Pond and its surrounding wetlands with the Russian River (a navigable “waters of the United States”) to find that Basalt Pond falls under the CWA as an adjacent wetlands. In reaching this conclusion, the court stated that “the mere adjacency of Basalt Pond and its wetlands to the Russian River is not sufficient for CWA protection. The critical fact is that the Pond and navigable Russian River are separated only by a man-made levee so that water from the Pond seeps directly into the adjacent River. This is a significant nexus between the wetlands and the Russian River and justifies CWA protection under the ACOE (Army Corps of Engineers) regulations and current Supreme Court jurisprudence.”
(Emphasis added)
As additional support for this finding, the court noted that there is an actual surface connection between the pond and the river when the river overflows the levee, and also stated that there is an underground hydraulic connection between the two bodies such that a change in the water level in one immediately affects the water level in the other. The court explained that at least 26 percent of the pond’s volume annually reaches the river itself, and that the pond supports substantial bird, mammal and fish populations that make the pond and its wetlands indistinguishable from any of the other wetlands along the Russian River. The court also found that the waste system treatment exception to the CWA does not apply to Basalt Pond because it is not a self-contained pond, nor is it incorporated in an NPDES permit as part of a treatment system.
In holding that the underlying groundwater between Basalt Pond and the river was enough to establish a “substantial nexus” in the context of a wetlands case, the Ninth Circuit essentially went against existing law and the position taken by NACWA that a groundwater connection alone is not enough to establish a substantial nexus for CWA purposes. The court’s ruling also went directly against the position of the Rapanos plurality, which would require a continuous surface connection. However, in a victory for NACWA and its partners CASA and ACWA, the court did not endorse the position of River Watch and the lower federal court that the Basalt Pond, or the underlying groundwater, is a “tributary” waters of the United States. The court’s Healdsburg holding is thus limited only to situations involving groundwater linked to adjacent wetlands and does not mean that all groundwater can be considered “tributaries” within the meaning of the CWA.
III. NACWA’s Next Steps
There has been much action in this case since the court’s August 10 decision, and NACWA remains actively involved with the case. On August 23, the City of Healdsburg filed a Petition for Rehearing, asking that the Ninth Circuit re-examine a number of the issues discussed in the opinion. Among the issues the City asks the court to review are
1.) its finding that Justice Kennedy’s test is the controlling law of Rapanos,
2.) whether the court misapplied the “significant nexus” test, and
3.) whether the court erred in its interpretation of the waste treatment system exception.
On August 28, River Watch filed a Motion for Reconsideration, asking that the court reconsider its finding that mere adjacency is not enough to establish a significant nexus. And on August 31, 2006, the United States filed, as amicus curiae, a Motion to Clarify, asking the court to clarify the opinion to reflect that jurisdiction under the CWA may be established whenever the legal standard of the plurality or Justice Kennedy is satisfied. [4]
Given the unusual number of parties asking the Ninth Circuit to reconsider its ruling, including the United States as an interested third party, NACWA believes it likely that the court will hold a rehearing. Accordingly, NACWA, along with CASA and ACWA, filed a letter with the court on September 11 in support of the City’s request for rehearing. The letter reiterates the importance of the Healdsburg decision as the first appellate case post-Rapanos, and specifically expresses NACWA’s concern over the court’s use of Justice Kennedy’s “significant nexus” test, as well as the court’s casual disregard for the “wastewater treatment exception.” You can find a copy of NACWA’s letter at http://www.nacwa.org/private/littrack/#healdsburg.
NACWA will closely monitor this case as the court considers a rehearing and we will keep the membership apprised of further developments in this important matter.
[1] Syar Industries, Inc., is the current owner and manager of land and operations at Basalt Pond, and joined the case as an amicus curiae. Active excavations at the pond stopped in 1984, but Syar still uses it for commercial purposes.
[2] The “waste treatment exception,” found at 33 C.F.R. § 328.3(a)(8), provides that waste treatment systems, including treatment ponds designed to meet the requirements of the CWA, are not waters of the United States.
[3] The Rapanos decision was 5-4 (and due to the varied approaches in the decision has also been described as 4-4-1), with Justice Kennedy concurring in the judgment only and writing a concurring opinion. Justice Scalia wrote the plurality opinion.
[4] The U.S. was not an original party to the case, and this Motion to Clarify marks the first time it has become involved.