The U.S. Supreme Court Feb. 19 declined to review whether the Clean Water Act requires a permit for discharges into a treatment pond that drains into an underground aquifer leading to a navigable water (Healdsburg v. Northern California River Watch, U.S., No. 07-625, 2/19/08).

At issue was a decision by the U.S. Court of Appeals for the Ninth Circuit to require the city of Healdsburg, Calif., to obtain a National Pollutant Discharge Elimination System (NPDES) permit to legally discharge city sewage into an old, man-made gravel pit that the city has been operating as a wastewater treatment lagoon.

City officials disputed the ruling, and in November they petitioned the Supreme Court to review whether the Ninth Circuit stretched the scope of the Clean Water Act in regulating a man-made wastewater treatment lagoon like a wetland because the gravel pit is linked to a navigable river through groundwater connections (223 DEN A-6, 11/20/07  ).

In rejecting the petition, the Supreme Court leaves intact the Ninth Circuit's ruling.

The Ninth Circuit used a test established by Supreme Court Justice Anthony Kennedy to hold that the man-made gravel pit was subject to federal protection because it had a significant nexus to the Russian River, a navigable water of the United States that is protected under the Clean Water Act (Northern California River Watch v. Healdsburg, 496 F.3d 993, 64 ERC 2097 (9th Cir. 2007)).

Discharges of pollutants into the waters of the United States, including navigable rivers, are regulated by NPDES permits under the Clean Water Act.
Kennedy's test was outlined in Rapanos v. United States, 126 S. Ct. 2208, 62 ERC 1481 (2006); (118 DEN A-1, 6/20/06  ).

Wastewater Community 'Disappointed.'

The National Association of Clean Water Agencies, which represents publicly owned wastewater utilities, expressed its disappointment with the Supreme Court decision not to review the case.

NACWA General Counsel Keith Jones told BNA that the association was hoping the Supreme Court would clarify the confusion surrounding the Rapanos ruling. Jones said the Ninth Circuit used Kennedy's test as the "rule of law" for establishing jurisdiction, but "that test was not adopted by the remaining eight Supreme Court justices."
Going forward, Jones said the wastewater community will just have to try to find its way in interpreting the Healdsburg and Rapanos rulings.

Peter McGaw, an attorney with Archer Norris representing the city, said he could not comment on the Supreme Court's action because he had not had time to confer with city officials.

City Says Discharges Not Regulated by Act

The Ninth Circuit found that the man-made gravel pit had a "significant nexus" to the Russian River because the discharged waste was seeping into the river waters through the aquifer, significantly affecting the river's biological, physical, and chemical integrity.

A levee separates the man-made pit from the Russian River. An excavation for gravel in 1968 formed the pit. A decade later, the city began using the pit to discharge sewage without an NPDES permit. The sewage pit drains into the surrounding aquifer.

Healdsburg officials disagreed with the Ninth Circuit. They disputed whether the Clean Water Act applies to discharges into groundwater aquifers.

In their petition, city officials argued that the U.S. Courts of Appeal for the Fifth, Seventh, and First circuits have determined that groundwater is not subject to Clean Water Act jurisdiction (Exxon Corp. v. Train, 554 F.2d 1310, 10 ERC 1289 (5th Cir. 1977); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 38 ERC 1760 (7th Cir. 1994), cert. denied, 513 U.S. 930, 39 ERC 2088 (1994); and Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 35 ERC 1013 (1st Cir. 1992)).

Healdsburg asked the Supreme Court to review whether the Ninth Circuit overreached in extending Clean Water Act jurisdiction, invaded state authority, and exceeded congressional intent by holding that discharges into a groundwater aquifer are subject to the Clean Water Act.

It also asked whether the Ninth Circuit failed to defer to the U.S. Army Corps of Engineers, which has disclaimed Clean Water Act jurisdiction over gravel pits, and whether the Ninth Circuit erred in equating man-made water bodies with wetlands adjacent to navigable waters. 


By Amena H.