The Ninth Circuit Court of Appeals has weighed in on the interpretation of Rapanos v. United States, the recent U.S. Supreme Court case that struggled to define wetlands covered under the Clean Water Act.
In one of the first wetland cases since the high court’s Rapanos decision, the Ninth Circuit relied upon Justice Kennedy’s opinion in Rapanos as providing the "controlling rule of law" to determine how "navigable waters" should be construed under the Clean Water Act. Kennedy had postulated that "adjacent wetlands" are covered by the Clean Water Act if they have a "significant nexus" to truly navigable waterways. The Ninth Circuit’s elaboration and application of several factors in determining whether the requisite "significant nexus" existed in the case before it will undoubtedly be looked to by regulatory agencies and lower courts for guidance.
The case is Northern California River Watch v. City of Healdsburg, Case No. 04-15442 (9th Cir. Aug. 10, 2006), and it involved the City of Healdsburg’s discharge of sewage from its waste treatment plant into a 58-acre rock quarry pit that had filled with water from a surrounding aquifer. Referred to as the "Basalt Pond," the quarry pit is located next to the Russian River and is separated from the River by a levee. Plaintiffs alleged that the City discharged sewage into the Basalt Pond without obtaining the proper permit under the Clean Water Act. The City argued the Basalt Pond was not subject to the Clean Water Act because the Pond did not constitute a "wetland adjacent to waters" within the meaning of the Army Corps of Engineers’ regulations defining "waters of the United States."
In its decision, the Ninth Circuit first concluded that the Basalt Pond contained "wetlands," in light of regulations defining wetlands as "those areas that are inundated or saturated by surface or groundwater" and case law holding that man-made wetlands may still qualify as regulated waters. The court then discussed Rapanos in the context of deciding whether these adjacent wetlands constituted waters of the United States subject to the Clean Water Act. Citing the rule articulated by Justice Kennedy in Rapanos, the court determined the Basalt Pond had a significant nexus to the Russian River to make it a "water of the United States."
This decision is important. First, it suggests the Ninth Circuit and other circuit courts of appeal are likely to rely on Justice Kennedy’s "significant nexus" test to determine whether an adjacent wetland is a "water of the United States." Second, this decision sets forth some of the factors a court may consider when evaluating whether a "significant nexus" exists. The court reiterated Justice Kennedy’s observation that a mere hydrologic connection may not suffice to establish "significant nexus." Other factors related to the Clean Water Act’s goals and purposes should also be considered. As described by the Ninth Circuit, these factors may include direct seepage from the wetland to the navigable water, a surface or underground hydraulic connection, an ecological connection (e.g., the same bird, mammal and fish populations are supported by both the wetland and the navigable water), and changes to chemical concentrations in the navigable water due to water from the wetland.
As Rapanos continues to generate case law, court-created factors such as these are likely to become important considerations for both the resource agencies and the regulated community alike. In the meantime, Army Corps of Engineers guidance under Rapanos is still pending, and so for now, the jury is still out as to how the Army Corps of Engineers intends to apply the Supreme Court decision (and now the Ninth Circuit decision in the western states) in regulating wetlands and other waters.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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