ELR Citation: ELR 20163
No(s). 04-1544 (9th Cir. Aug 10, 2006)

The court holds that a city that discharges wastewater without a national pollutant discharge elimination system (NPDES) permit into a pond that contains wetlands adjacent to a river violates the Clean Water Act (CWA). In light of the U.S. Supreme Court's decision in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006), the pond and its wetlands possess a "significant nexus" to waters that are navigable-in-fact because the pond waters seep directly into the Russian River, a navigable water of the United States. The pond, therefore, is subject to the CWA. The court also affirms the lower court's ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to the city's discharges. Although the pond may be part of a waste treatment system, it does not fall under the waste treatment system exemption because it is neither a self-contained pond nor is it incorporated in an NPDES permit as part of a treatment system. And the excavation operation exemption applies only to ponds undergoing actual extraction.