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Northern Cal. River Watch v. Healdsburg, City of

ELR Citation: 37 ELR 20202
Nos. No. 04-15442, (9th Cir., 08/06/2007) Prior decision withdrawn

The Ninth Circuit, withdrawing its previous opinion filed August 19, 2006, held that a pond and its surrounding wetlands adjacent to the Russian River in northern California was protected under the Clean Water Act (CWA). In its previous opinion, the court found that the pond, which receives wastewater discharges from a waste treatment plant, were covered by the Act. But the court reexamined the case in light of Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006). Applying Justice Anthony M. Kennedy's test, the court held that the pond and its wetlands possessed a "significant nexus" to navigable waters of the United States, 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. The pond, therefore, is subject to the CWA. The court also affirmed the lower court's ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to treatment plant's discharges.

[The withdrawn decision in this litigation can be found at 36 ELR 20163.]