Northern California River v. City of Healdsburg

• Decision Date: 06 August 2007
• Docket Number: No. 04-15442.,04-15442.
• Citation: 496 F.3d 993
• Parties: NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation, Plaintiff-Appellee, v. CITY OF HEALDSBURG, and Does 1-10 inclusive, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.3d 993

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation, Plaintiff-Appellee, v. CITY OF HEALDSBURG, and Does 1-10 inclusive, Defendant-Appellant.

No. 04-15442.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2005.

Filed August 6, 2007.

Peter W. McGaw, Archer Norris, Walnut Creek, CA, for the appellant.

Charles M. Tebbutt, Western Environmental Law Center, Eugene Oregon and Jack Silver, Law Offices of Jack Silver, Santa Rosa, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-01-04686-WHA.

Before: MARY M. SCHROEDER, Chief Judge, JEROME FARRIS and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

The opinion filed August 10, 2006, slip op. 9299, and appearing at 457 F.3d 1023 (9th Cir.2006) is withdrawn, and a new opinion will be filed in its stead.

The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED, no further petitions for rehearing will be accepted.

OPINION

SCHROEDER, Chief Judge:

Defendant/Appellant City of Healdsburg ("Healdsburg") appeals the district court's judgment in favor of Plaintiff/ Appellee Northern California River Watch ("River Watch"), an environmental group, in this litigation under the Clean Water Act ("CWA"). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System ("NPDES") permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as "Basalt Pond," a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.

The issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).

The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, ___ U.S. ___, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In a 4-4-1 decision, the controlling opinion is 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.

In light of Rapanos, we conclude 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. We affirm the district court's holding that Basalt Pond is subject to the CWA. We also affirm the district court's ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg's discharges.

BACKGROUND

The Clean Water Act of 1972 provides the foundation for this case. See 33 U.S.C. § 1251. The primary objective of the CWA is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To effectuate this objective, one of the CWA's principal sections strictly prohibits discharges of pollutants into the "navigable waters of the United States" without an NPDES permit from the Environmental Protection Agency ("EPA"). 33 U.S.C. § 1311(a). The CWA defines the term "navigable waters" to mean "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).

Basalt Pond was created in approximately 1967 when the Basalt Rock Company began excavating gravel and sand from land near the Russian River. After the top soil was ripped away, large machines tore out rock and sand. The result was a pit. The pit filled with water up to the line of the water table of the surrounding aquifer. Today, Basalt Pond, measuring one half mile in length and a quarter mile in breadth, contains 58 acres of surface water. The Pond lies along the west side of the Russian River, separated from the River by wetlands and a levee.

It is undisputed that the Russian River is a navigable water of the United States. Its headwaters originate in Mendocino County, California. Its main course runs about 110 miles, flowing into the Pacific Ocean west of Santa Rosa.

The horizontal distance between the edge of the River and the edge of the Pond varies between 50 and several hundred feet, depending on the exact location and the height of the river water. Usually, there is no surface connection, because the levee blocks it and prevents the Pond from being inundated by high river waters in the rainy season.

In 1971, Healdsburg built a secondary waste-treatment plant on a 35-acre site located on the north side of Basalt Pond about 800 feet from and west of the Russian River. Prior to 1978, Healdsburg discharged the plant's wastewater into another water-filled pit located to the north. In 1978, Healdsburg began discharging into Basalt Pond. Although Healdsburg did not obtain an NPDES permit, it received a state water emission permit as well as permission from Syar Industries, Inc., the current owner and manager of land and operations at Basalt Pond.

The wastewater was discharged into Basalt Pond from the plant at about 420 to 455 million gallons per year between 1998 and 2000. The volume of the Pond itself is somewhat larger — 450 to 740 million gallons. The annual outflow from the sewage plant, therefore, is sufficient to fill the entire Pond every one to two years. Basalt Pond would, of course, soon overflow in these circumstances were it not for the fact that the Pond drains into the surrounding aquifer.

Pond water in the aquifer finds its way to the River over a period of a few months and seeps into the River along as much as 2200 feet of its banks. The district court made specific findings as to the impact of the wastewater ultimately draining into the Russian River. First, the district court noted that not all the sewage in the wastewater reached 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.

The district court found that the concentrations of chloride in the groundwater between the Pond and the Russian River are substantially higher than in the surrounding area. Chloride, which already exists in the Pond due to naturally occurring salts, reaches the River in higher concentrations as a direct result of Healdsburg's discharge of sewage into the Pond. Mr. John Lambie, a water expert for Healdsburg, testified at trial that the average concentration of chloride appearing upstream in the River is only 5.9 parts per million. In contrast, the average concentration of chloride seeping from Basalt Pond into the River is 36 parts per million. At a monitoring well between the Pond and the River, the underground concentration is diluted to some 30 parts per million. Ultimately, a chloride concentration of 18 parts per million appears on the west side of the River. The district court thus found that chloride from the Pond over time makes its way to the River in higher concentrations than naturally occurring in the River. This finding was further supported by Dr. Larry Russell, one of River Watch's trial experts.

Plaintiffs filed this suit on December 4, 2001, alleging that Healdsburg is violating the CWA by discharging wastewater into Basalt Pond. After a four day trial, the district court made findings of fact to support its holding that Healdsburg discharged sewage into a protected water of the United States in violation of the CWA. The court's holding was premised on the legal conclusion that Basalt Pond is a "water of the United States" within the meaning of the CWA. See 2004 WL 201502 (N.D.Cal.). This appeal followed.

DISCUSSION

A. Wetlands Constituting Waters of the United States

Congress passed the Clean Water Act in 1972. The Act's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 33 U.S.C. § 1251(a). To that end, the statute, among other things, prohibits "the discharge of any pollutant by any person" except as provided in the Act. § 1311(a).

After the CWA was passed, an issue arose concerning the extent to which wetlands adjacent to navigable waters constitute "waters of the United States." In 1978, the Army Corps of Engineers ("ACOE") issued regulations defining "waters of the United States" to include "adjacent wetlands." 33 C.F.R. § 328.3(a)(7). The regulations specifically provide that "[t]he term `waters of the United States' means," among other things, "[w]etlands adjacent to waters." Id. The regulations further specify that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'" 33 C.F.R. § 328.3(c).

The Supreme Court has since confirmed that regulable waters of the United States include tributaries of traditionally navigable waters and wetlands adjacent to navigable waters and their tributaries. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455 33 C.F.R. 328.3(a)(1),(4),(7). The only question reserved in Riverside Bayview Homes was the issue of CWA jurisdiction over truly isolated waters. See Rapanos, 126 S.Ct. at 2255 n. 3....