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January 23, 2004.

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation, Plaintiff V. CITY OF HEALDSBURG, Defendant

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge

The basic question concerns the extent to which a pond formed from an old gravel pit and adjacent wetlands, all alongside the Russian River, are within the jurisdiction of the Clean Water Act. The issue is of importance because defendant City of Healdsburg discharges all of its treated sewage into the pond, which then drains via an aquifer into the nearby Russian River. It does so without an NPDES permit. After a bench trial, this order now holds that an NPDES permit is needed.


  Plaintiff Northern California River Watch filed the instant citizen suit under the Clean Water Act against defendant City of Healdsburg on December 4, 2001. The complaint was based on allegations that Healdsburg routinely makes unauthorized discharges of pollutants from its waste-treatment facility into Basalt Pond, a pond formed from an old gravel mining pit Page 2 alongside the Russian River. The pond and its wetlands, River Watch claims, are part of the "navigable waters of the United States." It is stipulated (No. 28) that plaintiff has standing to assert claims with regard to the Russian River under the Act. Similar allegations formed the basis of a companion suit filed by River Watch on July 9, 2002, against Syar Industries, Inc., as to its wastewater discharges into Basalt Pond The actions were consolidated. Syar settled. The consent decree was filed on August 5, 2003, bringing to a close the litigation as to Syar.

  River Watch and Healdsburg filed cross-motions for summary judgment. The Court granted partial summary judgment in favor of River Watch, finding that Healdsburg (i) discharged (ii) treated wastewater (iii) from a pipe extending from its treatment plant into Basalt Pond (iv) without an NPDES permit. On the summary-judgment record presented, however, whether Basalt Pond was within the "navigable waters of the United States" remained an open question. A bench trial commenced December 16, 2003. After four days of evidence and argument, this order now sets forth the Court's findings of fact and conclusions of law.*fn1


  The Russian River, all agree, is within the navigable waters of the United States. Its headwaters originate in Mendocino County, California. Its main course runs about 110 miles, flowing into the Pacific Ocean west of Santa Rosa. Before modern times, the Russian River occasionally overflowed its banks and created natural ponds and wetlands along its banks. During high water, it forged new channels, stranding the old channels, creating oxbow lakes, and saturating and supporting adjacent wetlands. All of these ponds and wetlands, together with the river, supported plant life and fish and wildlife in an integrated ecosystem.

  With civilization, the river became more controlled. Towns grew up along and near the river. Nearby land was cleared for agriculture and ranching. To protect these developments, levees were built in some places, dams in others, and the channel was dredged for flood control. The river was not completely tamed, however. Even today, large storms overpower the flood controls on occasion. In 1995, during persistent winter rains, the levee between the river and the Page 3 site here in question, the so-called Basalt Pond in Sonoma County, was breached twice and once again in 1997. In 2002, the flood level reached within a foot of the levee top, even after an extra three vertical feet had been added to the levee,

  The Russian River and surrounding area rest on top of a vast gravel bed extending as much as sixty feet into the earth. The gravel bed is the result of ancient processes over geologic time whereby rock was washed downstream, the edges sanded smooth. This resulted in huge deposits of river rock, sand, and gravel. The gravel bed is a porous medium, saturated with water. Through it flows an equally vast underground aquifer. This fact poses two significant points of interest in this case. It explains why so much gravel mining has occurred along the river. It also supplies the principal pathway for a continuous passage of water between Basalt Pond and the Russian River.

  Basalt Pond lies alongside and west of the river, the two separated by a levee. Whether a tarn, even a slight one, pre-existed the Basalt Pond excavation is doubtful on this record. Be that as it may, we know that in approximately 1967, the Basalt Rock Company, a division of Dillingham Construction Company, began excavating gravel and sand from the terrace land near the river (as well as other mining locations in the surrounding area). The terrace top soil was ripped away. Large machines then tore out rock and sand. When the water table was reached, drag lines continued the excavation, dropping into the water and pulling out more rock and sand. The ore was hauled away and processed at a nearby plant. The result was a pit. It filled with water up to the line of the water table of the surrounding aquifer, i.e., the pond opened the aquifer to the sky. In this manner, Basalt Pond was created. Today, the pond has 58 acres of surface water. It is a half-mile long and a quarter-mile across. A map of the river and the pond is reproduced in Figure 1. Page 4


  The horizontal distance between the river's edge and the pond's edge varies between fifty and several hundred feet, depending on the exact location and the height of the water. For at least 750 feet along the east side of the pond, the distance is less than 100 to 200 feet at normal water stages (TX 21 at H1365). Normally, there is no surface connection, the levee blocking the way. But for the levee the pond would be inundated by high river waters in the rainy season. As stated, the levee has broken three times in the last eight years, each time the levee being repaired within a few months (Stip. No. 18). To a minor extent, a vestige of uplands remain in some places near the pond, but they are below the levee top and are likewise subject to inundation.

  Beneath the surface the story is different. There, water soaks in and out of the pond via the pervasive underground aquifer. This action is continuous, 24 hours a day, seven days a week, 365 days a year. In fact, water from the aquifer flows downhill from the side of the Page 5 valley, through the pond and under the levee — all via the gravel-laden, water-saturated aquifer. The subterranean flow finally bleeds into the river itself or at least a large part of it does. It is stipulated herein that the pond and the river overlie the same unconfined aquifer and that the land separating the two is saturated below the water table. In this sense, the underground aquifer is a slow-moving, underground tributary of the river. The pond is an open way station on the underground tributary.

  In an official report, Healdsburg itself has characterized the water system as follows (TX 24 at H3037):
The groundwater basin is hydraulically connected to the Russian River. In the Russian River Valley, groundwater moves from the margins toward the Russian River during most of the year. Groundwater in the project area generally flows to the southeast with a gentle gradient. When groundwater levels are depressed, usually during the fall, flow in Russia River recharges the groundwater reservoir. River water moves into the alluvium during high river stages in the autumn and winter, and also during the summer in locations where large volumes of water are withdrawn from the river. Most recharge to the groundwater is derived from infiltration of rain that falls on the valley floor and from seepage into permeable deposits that underlie channels of the tributary streams.
  Although the Basalt Rock Company began its excavation of Basalt Pond in 1967, excavation ceased in 1984. In 1986, Syar Industries, Inc., acquired all of the local land and business of the Basalt Rock Company. Syar did not resume any extraction at Basalt Pond. Syar, however, carried on and still does carry on extraction at other pits in the area. Since 1984, no excavation has occurred at Basalt Pond. No activity at all was underway at the pond between 1984 to 1986 (TX 7 at RW0462-63). Healdsburg itself has referred to Basalt Pond as "an abandoned quarry" (TX 24 at H3038).

  Reclamation activities by Syar, however, have been underway at Basalt Pond since 1986. To this end, Syar has pumped a slurry of sand and sediment from its main aggregate processing plant near Healdsburg via a long pipe into Basalt Pond. This slurry is a by-product of rock extracted elsewhere — again, not from Basalt Pond. The outfall from the slurry pipe flows onto the margin of Basalt Pond, the outfall point being moved from time to time, such that the sediment and fill have slowly been filling in and reclaiming the edges of the pond as wetlands. Page 6

  As well, a considerable amount of sediment has drifted over the entirety of the pond and settled to the bottom, forming a layer that helps filter out pollutants as water drains into the aquifer. Since 1993, Syar has been directed by the county to direct the flow of sediment to the bank near the levee. This is meant to strengthen the levee (on the pond side). The reclamation/slurry process is expected to go on for many years.

  Trees and plants have also been planted along the reclaimed margins, all for the purpose of developing man-made wetlands. Most of the plants and trees that inhabit the riparian forests along the river and pond are wind pollinated and disperse their seeds by wind. The result is that similar plants and trees appear in abundance in both locations. A few of the most common include cottonwoods, coyote brush, willows, and red willow trees. Although virtually the entire perimeter of the pond is now wetlands, the predominate wetlands are along the east and southeast margins of the pond. The perimeter is characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction.

  The wetlands, in turn, now support substantial bird, animal and fish populations, all as an integral part of and indistinguishable from the rest of the Russian River ecosystem. Many of the bird populations at the pond are familiar along the river, including cormorants, great egrets, mallards, sparrows, and fish-eaters. Fish indigenous to the river also live in the pond due to the recurring breaches of the levee. As a result, it would be hard to distinguish Basalt Pond from any of the natural wetlands and tarns that have developed alongside the Russian River over the course of time.

  In 1971, defendant City of Healdsburg built a secondary waste-treatment plant on a 35-acre site located on the north side of Basalt Pond about 800 feet from and west of the river. Prior to 1978, Healdsburg discharged its wastewater into another water-filled pit located to the north. In 1978, Healdsburg began discharging into Basalt Pond. It continues to do so pursuant to permission from Syar and pursuant to a state water permit. The treated outfall, however, does not meet NPDES standards. No NPDES permit has ever been obtained. Wastewater discharges to Basalt Pond from the plant were between 420 and 455 million gallons per year between 1998 and 2000. The volume of the pond itself is of the same order of Page 7 magnitude — 450 to 740 million gallons. The annual outflow from the sewage plant, therefore, is sufficient to fill the entire pond every one to two years. The pond would, of course, soon overflow in these circumstances were it not for the fact that the pond drains into the surrounding aquifer. Because of this drainage, the pond has reached a steady state in which the "volume in" equals the "volume out."*fn2

  Much evidence was received at trial on the precise underground relationship between the pond and the river. The normal surface level of the pond is only a few feet higher than the normal level of the river. This conforms to the general terrain by which the underground aquifer, collecting water from the larger drainage of the river valley, flows downhill through the pond and then into the river or river bed. The large quantity of treated sewage has caused the level of the pond water to rise somewhat higher than the normal water table of the groundwater. As stated, the downhill flow passes through the pond, albeit slowly, and eventually moves yet farther downhill According to Healdsburg's water expert at trial, at least one-fourth of the liquid in the pond finds its way into the river proper. Healdsburg's own environmental impact report gave a higher and more probable estimate: "It is likely that the entire volume of treated wastewater and aggregate wash water discharged to Basalt Pond (2.1 cfs) will eventually migrate to the River, either directly through the aquifer or indirectly" (TX 24 at H3186-87). Pond water will ordinarily take several months to find its way to the river and drains into the river over a stretch as long as 2200 feet. Although the discharges into the pond do not meet NPDES standards, the pollutants are diluted by the time they actually bleed into the Russian River.

  In passing through the bottom and sides of the Basalt Pond, the effluent is partially cleansed. This cleansing and settling process is sometimes referred to as "polishing" or "percolation" by Healdsburg. Since groundwater flows through the pond, the flow is not only through the bottom, as Healdsburg contends, but also is through the sides including through the wetlands along the margin of the pond — particularly those heavier wetlands between the pond Page 8 and the levee. These wetlands also help cleanse the outflow by passing the effluent through the wetlands sediment, just as the outflow through the silt bottom likewise filters the fluid. The filtration is effective in reducing biochemical oxygen demand and removing some pollutants.

  The filtration is not perfect. The concentrations of chloride in the groundwater between the pond and the river, for example, are substantially higher than in the surrounding area, Chloride, which already exists in the pond due to naturally occurring salts, reaches the river in higher concentrations as a direct result of Healdsburg's discharge of sewage into the pond. Mr. John Lambie, a water trial expert for Healdsburg, testified that the average concentration of chloride appearing upstream in the river is only 5.9 parts per million. In contrast, the average concentration of chloride in the water exiting Basalt Pond is 36 parts per million. At a monitoring well between the pond and the river, the underground concentration is diluted to some 30 parts per million. Ultimately, a chloride concentration of 18 parts per million appears on the west side of the river adjacent to the pond. As such, chloride from the pond over time makes its way to the river in higher concentrations than naturally occurring in the river (Tr. 588-92).*fn3

  The river and the pond rise and fall in tandem. The reason is that they are connected by the aquifer. A relative change in the heads of pressure between the two waterbodies will influence each, almost immediately, causing an adjustment in the surface levels. This influence is "hydraulic," meaning the pressure is transmitted within the underground fluid body itself. One might think that river water was flowing into the pond via the aquifer, but not so. The levels do not rise and fall in tandem for any such reason. Such a direct effect would be difficult, Page 9 given the slow transit time of water through the sponge-like, gravelly texture of the alluvium. Instead, the reason is, as stated, because the gravel is saturated with water and it instantly transmits any pressure change. Any pressure difference in the river, as it rises and falls, is thus transmitted through the aquifer, which forces groundwater up into the pond or pulls pond water through bottom and side layers down into the alluvium, as the case may be. The above represent the findings necessary to address the main conclusions of law. For clarity and ease in presentation, additional findings will be made below.


  The Clean Water Act of 1972 established two programs of importance to this case. Section 402 authorized the Environmental Protection Agency to administer the National Pollution Discharge Elimination System (NPDES). Under Section 301(a), sewage treatment facilities and other point sources were barred from making discharges into the navigable waters of the United States without an NPDES permit. 33 U.S.C. § 1311 (a). The Act allowed EPA to authorize state agencies to administer the NPDES program. In most states, including California, the NPDES program is administered by state agencies pursuant to federal standards. The second program of note herein was authorized by Section 404. It prohibited dredging or filling of any navigable waters of the United States without a permit from the Army Corps of Engineers. 33 U.S.C. § 1344. Thus, the jurisdictional reach of both programs depends on the term "navigable waters of the United States."

  All agree herein that the Russian River falls within the "navigable waters of the United States." The Healdsburg system is a "point source." All agree that Healdsburg has never had an NPDES permit. The issue is whether Basalt Pond and/or its wetlands fall within the navigable waters of the United States such that an NPDES permit is required.

  If Healdsburg were required to apply for and obtain an NPDES permit, it would be subject to regulation over and above that imposed by its state-issued permits. For example, Healdsburg currently chlorinates its treated sewage but is not required to de-chlorinate it prior to discharge into Basalt Pond. This would change if the pond were within the "navigable waters of the United States." Healdsburg would then need an NPDES permit and be required to Page 10 de-chlorinate its treated sewage prior to discharge (Tr. 295-96). Thereafter, to ensure compliance with the Act, Healdsburg would have to establish and maintain records and install, use, and maintain equipment to monitor and sample the chlorine (or ...

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