▪ Clean Water Act Post-Rapanos — Ninth Circuit's New Opinion in Northern Cal. River Watch v. City of Healdsburg

The Ninth Circuit has issued a new opinion in Northern California River Watch v. City of Healdsburg (No. 04-15442, Aug. 6, 2007). 

The case involves the post-Rapanos standard for how "navigable waters of the United States" is defined in the Clean Water Act, and what wetlands are covered under the Act's jurisdiction.  The court summarized its decision, holding that the controlling test from the Rapanos plurality (4-4-1) decision is Justice Kennedy's "significant nexus" test:

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 (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 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.

The opinion is posted here.