In a ruling from the Sonoma County wine country, the Ninth U.S. Circuit Court of Appeals has apparently signaled its intent to continue with a broad reading of the Clean Water Act.

The court ruled that the Clean Water Act’s provisions apply to a pond in an old gravel pit that is separated from the Russian River by a man-made levee. The decision marks the Ninth Circuit’s first interpretation of the recent U.S. Supreme Court ruling in Rapanos v. United States, 126 S.Ct. 2208 (see CP&DR Legal Digest, July 2006). In that case, the high court divided 4-4-1 over the reach of the Clean Water Act (CWA), with Justice Anthony Kennedy authoring a concurring opinion that fell between the four-vote blocs.

“In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable 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,” Ninth Circuit Chief Judge Mary Schroeder wrote. In the case filed by Northern California River Watch against the City of Healdsburg, the Clean Water Act applies because “pond waters seep directly into the navigable Russian River,” the court ruled.

The decision, which pleased many environmentalists, has spawned a great deal of analysis and commentary by water and land use lawyers. Property rights attorney Michael Berger of Manatt, Phelps & Phillips argued in a Los Angeles Daily Journal column that the Ninth Circuit was wrong to base its decision on Justice Kennedy’s concurring opinion in Rapanos. The Ninth Circuit, Berger wrote, improperly ignored the other four justices with whom Kennedy joined in overturning a lower court’s decision to support the Army Corps of Engineers’ broad reading of the Clean Water Act.

In a response op-ed, Norman Dupont, of-counsel at Richards, Watson & Gershon, wrote, “[W]hat the Ninth Circuit did in River Watch was a practical counting of the actual votes: the Stevens group had four votes for a broad reading of the Clean Water Act. Kennedy was a fifth vote supporting a reading of the Clean Water Act to allow for imposition of federal jurisdiction and regulation of a wetlands area as long as there was a convincing showing of an actual connection between the wetlands or pond area and a navigable waterway.”

In an advisory, attorneys at Weston, Benshoof, Rochefort, Rubalcava, MacCuish would only say that “it remains to be seen whether other circuits” will adopt Kennedy’s significant nexus test.

The issue for lawyers is what to do when the Supreme Court essentially casts a tie vote, as it did in Rapanos. In that case, Justice Antonin Scalia and three others voted to significantly narrow the Corps of Engineers’ power to regulate activities affecting wetlands. They contended the Clean Water Act extends only to navigable waters and continuously flowing surface waters with direct connections to navigable waters. However, Justice John Paul Stevens and three others voted to uphold the Corps’ current regulatory approach that covers many types of surface waters and wetlands.

Kennedy cast the pivotal vote with the Scalia bloc to overturn the Sixth Circuit decision for the Corps. However, Kennedy’s concurring opinion rejected both the Corps’ existing, broad regulations and Scalia’s narrow statutory interpretation.

Under Marks v. United States, 430 U.S. 188 (1977), when the court is fragmented, “the holding of the court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.”

In the River Watch decision, Chief Judge Schroeder cited Marks in determining that Kennedy “provides the controlling rule of law.”

The facts on the ground are more straightforward. Basalt Rock Company began excavating gravel and sand from a site near the Russian River during the late 1960s. The resulting pit, known as Basalt Pond, is one-half mile long and one-quarter mile wide, and it fills with water from an underground aquifer. Although a levee separates the pond from the Russian River, there is little dispute that water in the pond drains into the shared aquifer and infiltrates the river.

In 1978, the City of Healdsburg began discharging treated wastewater into Basalt Pond. Although the city received a state permit, it did not obtain a National Pollutant Discharge Elimination System (NPDES) permit. The federal Environmental Protection Agency issues NPDES permits to enforce the Clean Water Act. In 2001, River Watch sued the city, arguing that it was violating the act by discharging into the pond without a NPDES permit.

District Court Judge William Alsup ruled for the environmental group. The Ninth Circuit, which appears to have waited for the Rapanos decision to come down, upheld Alsup.

According to the Ninth Circuit, the leading case on wetlands regulation under the Clean Water Act remains United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In that case, the Supreme Court ruled that “the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands” may be regulated as “waters of the United States.”

Justice Kennedy’s significant nexus test in Rapanos and an earlier decision that narrowed the Clean Water Act, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (see CP&DR Environment Watch, May 2001), have only clarified Riverside Bayview Homes, according to the Ninth Circuit.

“[I]t is apparent that the mere adjacency of Basalt Pond and its wetlands to the Russian River is not sufficient for CWA protection,” Schroeder wrote. “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 regulations and current Supreme Court jurisprudence.”

“Moreover,” Schroeder continued, “there is an actual surface connection between Basalt Pond and the Russian River when the river overflows the levee and the two bodies of water commingle.”

Healdsburg sought a Clean Water Act exception for waste treatment systems. However, the court ruled that the exception applies only to self-contained treatment systems or waters that are incorporated into an NPDES permit. Neither of those conditions applied here.

The Case:
Northern California River Watch v. City of Healdsburg, No. 04-15442, 06 C.D.O.S. 7301, 2006 DJDAR 10537. Filed August 10, 2006.
The Lawyers:
For River Watch: Charles Tebbutt, (541) 485-2471.
For Healdsburg: Peter McGaw, Archer Norris, (925) 930-6600.