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Ninth Circuit Issues Decision Clarifying the Scope of Clean Water Act Jurisdiction in the Wake of Rapanos v. United States

By: Paul S. Weiland
08/14/06

On August 10, 2006, the United States Court of Appeals for the Ninth Circuit issued the first-in-the-nation Court of Appeals decision applying the Supreme Court's recent decision in Rapanos v. United States, 126 S.Ct. 2208 (2006).  In Rapanos, five of the nine Supreme Court Justices voted to vacate the lower court decisions at issue, both of which were based on an expansive interpretation of the Clean Water Act.  But the Court issued five separate opinions with no single decision garnering a five vote majority.

 

At issue in the Ninth Circuit decision, Northern California River Watch v. City of Healdsburg, No. 01-4686 (9th Cir. Aug. 10, 2006), was whether a water body separated by a levee from a river – a navigable water indisputably subject to Clean Water Act jurisdiction – is subject to Clean Water Act jurisdiction.  In the case before the Ninth Circuit, an environmental group filed a citizen suit against the City of Healdsburg for discharging sewage into a water-filled excavation pit called the Basalt Pond, which is adjacent to the Russian River, in violation of the Clean Water Act.

 

In light of the absence of a majority opinion in Rapanos, the Ninth Circuit had to determine the appropriate law to apply.  The court had two options:  apply the law as set forth in the plurality opinion of Justice Scalia writing for four Justices or apply the law as set forth in the opinion of Justice Kennedy concurring in the judgment.  The Ninth Circuit determined that Justice Kennedy's opinion "provides the controlling rule of law."

 

The Ninth Circuit held that the pond at issue in the litigation is subject to Clean Water Act jurisdiction to the extent that it has a "significant nexus" to navigable-in-fact waterways.  Slip Op. at 9310.  The court quoted Justice Kennedy, who explained that a significant nexus exists if the relevant wetlands, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'"  Slip Op. at 9310 (quoting Rapanos, 126 S.Ct. at 2248).

 

The court found a significant nexus because of the "critical fact" that the Pond and the Russian River are "separated only by a man-made levee so that water from the Pond seeps directly into the adjacent River."  Slip Op. at 9311.  The court identified other evidence of a significant nexus, namely, the existence of actual surface flow between the pond and the river when the river overflows, shared bird and fish populations, and chemicals in the pond such as chloride that alter the chemical composition of the river downstream from the pond.

 

The Ninth Circuit's decision to apply the Kennedy opinion was likely determinative of the outcome in this case.  In his plurality opinion in Rapanos, Justice Scalia contends that "only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States' in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the Act."  In the case before the Ninth Circuit, no such "continuous surface connection" was present; instead, a surface connection only existed in instances where the river overflowed.  Slip Op. at 9311.

 

In any event, Northern California River Watch v. City of Healdsburg is now the law of the Ninth Circuit.  As a result, the fact-intensive test articulated by Justice Kennedy and applied by the court is binding in California.  The decision should provide some amount of clarity to both the federal government and the regulated community in a post-Rapanos world.

Paul Weiland counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Clean Water Act and Endangered Species Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.

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