Tuesday, August 07, 2007

Northern California River Watch v. City of Healdsburg

Aug 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 04-15442. The case provides another interpretation of the U.S. Supreme Court decision in Rapanos v. U.S (See links below). 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.

According to the Ninth Circuit, 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 (1985). The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the Appeals Court said, "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."

Access the complete opinion (
click here). [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. [*Water]