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Groundwater and the CWA, How Far Will The Ninth Circuit Go?
Spring 2005
ABA Natural Resources & Environment

by Lisa A. Kirschner

The scope of the federal Clean Water Act (CWA) has been the subject of substantial discussion and judicial review subsequent to the Supreme Court's 2001 decision addressing isolated waters in the Solid Waste Agency of Northern Cook County (SWANCC) case, 531 U.S. 159 (2001). The debate regarding CWA coverage has often focused on clarifying what wetlands are "adjacent" to and what waters are "tributary" to jurisdictional waters of the United States and, therefore, also subject to CWA regulation. A case currently on appeal to the Ninth Circuit has the potential to result in a decision that will directly address the issues raised by the debate with potentially broad implications for the implementation of the CWA.

The case, Northern California River Watch v. City of Healdsburg, 2004 WL 201502, is on appeal from a January 2004 decision in the Federal District Court of Northern California. The decision stemmed from a citizen suit alleging CWA violations associated with a municipal wastewater treatment facility. The matter involves longstanding waste water management by the City of Healdsburg which discharged treated sewage (pursuant to a state permit) to an abandoned sand and gravel pit (now filled with water and referred to as a pond) without obtaining coverage under CWA Section 402, the point source permit program. The pond is separated from the Russian River (a perennial river that runs to the Pacific Ocean) by a man-made berm. While the distance from the pond to the river is, in some cases, as little as fifty feet, there is no surface water connection. The perimeter of the pond is surrounded by wetlands which, according to the municipality, are the result of reclamation activities by the mining company. The Healdsburg court found the pond to be jurisdictional and covered by the CWA; the court held that the pond and its wetlands are "adjacent" to the Russian River. The court analyzed jurisdiction based, in part, on the underground connectivity between the pond and the river citing evidence that the underground aquifer beneath the pond flows through it, under the berm, and into the river.

Under the Section 404 program, the term "waters of the United States" includes wetlands "adjacent" to those waters. Adjacent is broadly defined to mean "bordering, contiguous, or neighboring." The Healdsburg court disputed the municipality's argument that SWANCC imposed a CWA jurisdiction prerequisite that there be a surface hydrological connection between a navigable water and the wetlands. The court cited the 1985 Supreme Court Riverside Bayview opinion, 474 U.S. 121, to support its finding that adjacent wetlands need not have a surface hydrological connection to the nearby jurisdictional water. The Healdsburg decision also underscores the court's view that the river, pond and adjacent wetlands are part of the same ecosystem. The Healdsburg opinion looked to Army Corps' program Section 404 regulations establishing that "wetlands separated from other waters of the United States by man-made dikes or barriers" are adjacent and regulable (citing 33 C.F.R. 328(c)). Finally, the court rejected the City's argument that the pond, an open water, cannot be characterized as adjacent. Rather, the Healdsburg opinion cited the language of Riverside Bayview in acknowledging that the pond is sufficiently small (58 acres) such that it "must be deemed to be inseparably bound up in the wetlands now surrounding it." Regarding a related set of arguments, the Healdsburg court specifically rejected the City's characterization of the pond as part of a wastewater treatment system and, therefore, subject to a regulatory exemption from permitting obligations. The court found that argument inapplicable for a number of reasons including the fact that the pond preexisted the plant and was not designed to accommodate sewage disposal.

While the Healdsburg decision addresses fairly routine legal arguments raised in the post-SWANCC environment, it went beyond the adjacency and CWA exemption arguments. In what is probably the most interesting (and a very brief) aspect of the decision, the Court also addressed the scope of the CWA over groundwater. "Although it is unnecessary to reach it, this order also holds that Basalt Pond [i.e., the pit] and the subterranean groundwater that flows through it are "tributaries" of the Russian River." The Healdsburg court "finds persuasive" a line of authority that extends federal jurisdiction over groundwater hydrologically connected to surface water. The court's determination broaches a divisive CWA issue as reflected by a very longstanding split in the case law.

There is no Ninth Circuit case addressing the issues raised by the Healdsburg court regarding CWA jurisdiction over groundwater. There are, however, a number of federal district court opinions including Washington Wilderness Coalition, 870 F. Supp. 983, a 1994 decision, and Friends of Sante Fe County, 892 F. Supp. 1333, a 1995 decision, holding that certain types of groundwater, i.e., that which is connected to surface water, fall within the purview of the CWA. In that regard, the Healdsburg court cited a specific 2001 federal district court opinion in Idaho, Idaho Rural Council v. Bosma, 143 F. Supp.2d 1169, as supporting its determination that the CWA covers the regulation of discharges from the pond to the Russian River. The Bosma court held that the CWA regulates hydrologically connected groundwater which "adversely affects" surface water. While the Bosma decision did not further define the threshold for asserting adverse effects, it did state that the burden is not light.

In contrast and as suggested above, other courts (including several circuit courts) have been reluctant to extend the reach of the CWA to groundwater. For example, in its 1992 landfill decision in Town of Norfolk, 968 F.2d 1438, the First Circuit declined to evaluate whether a proposed landfill would impact groundwater flowing into adjacent wetlands holding instead that the determination of the scope of CWA "involves an ecological judgment about the relationship between surface waters and groundwater [and] should be left in the first instance to the discretion of the EPA and the Corps." The Seventh Circuit's 1994 decision in Village of Oconomowoc Lake, 24 F.3d 962, (for which a petition for certiorari was denied) is more conclusive. In that case, the court considered an objection by a municipality to seepage from a warehouse storm water retention pond into groundwater and held "[n]either the Clean Water Act nor the EPA's definition [of waters of the United States] asserts authority over ground waters just because these may be hydrologically connected to surface waters." Certain federal district courts including the South Dakota court in Patterson Farm v. City of Britton, 22 F. Supp.2d 1085, have followed the reasoning of the Seventh Circuit holding that leaking lagoons were not covered by the CWA even if the associated discharges migrate to a surface water. Similarly, in its 1997 opinion in Umatilla v. Smith Frozen Foods, 962 F. Supp. 1312, the federal district court in Oregon cited statutory language, legislative history and practical reasons as the foundation for holding that "discharges of pollutants into groundwater are not subject to CWA's NPDES permit requirements even if that groundwater is hydrologically connected to surface water."

The Ninth Circuit may soon be evaluating the scope of CWA jurisdiction over groundwater. That issue -- along with the others raised by the Healdsburg decision -- has been fully briefed. In those briefs, appellees have acknowledged the split in the case law but cite to various rulemakings, including the general permit promulgated for concentrated animal feeding operations and the preamble for the federal storm water permitting program, as evidence that the regulatory agencies intend to cover hydrologic connections from groundwater to surface water. In contrast, the appellants argue that the case law and legislative history of the CWA do not support a broad finding of jurisdiction over groundwater. Appellants cite to, among other things, the "effects" language of the Bosma court and assert that: any water leaving the pond only results in "indiscernible" changes to the quality of the river; and absent a documented impact on the river itself, the court cannot require permitting over "theoretical" levels of constituents. Not surprisingly, amicus briefs have also been submitted on the issue. For example, the American Forest and Paper Association cites to legislative history to support its claims that "Congress has, at various times, considered regulating discharges to groundwater, but they remain outside of CWA jurisdiction."

Any determination by the Ninth Circuit on the Healdsburg issues will be closely followed and could have significant consequences for CWA programs in the Ninth Circuit and beyond. After the decision in SWANCC, the regulated community, legal scholars, permitting authorities and nongovernmental organizations have engaged in a much publicized debate over the scope of the CWA. The issues raised in that debate could be dwarfed by a Ninth Circuit decision addressing the scope of CWA regulation over groundwater.