FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHERN CALIFORNIA RIVER 

WATCH, a non-profit corporation, No. 04-15442

Plaintiff-Appellee, D.C. No.

v.  CV-01-04686-WHA

CITY OF HEALDSBURG, and Does ORDER AND

1-10 inclusive. OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted

November 16, 2005—San Francisco, California

Filed August 6, 2007

Before: Mary M. Schroeder, Chief Judge, Jerome Farris and

Consuelo M. Callahan, Circuit Judges.

Opinion by Chief Judge Schroeder

9371
COUNSEL

Peter W. McGaw, Archer Norris, Walnut Creek, California,

for the appellant. 

Charles M. Tebbutt, Western Environmental Law Center,

Eugene Oregon and Jack Silver, Law Offices of Jack Silver,

Santa Rosa, California, for the appellee.

ORDER

The opinion filed August 10, 2006, slip op. 9299, and

appearing at 457 F.3d 1023 (9th Cir. 2006) is withdrawn, and

a new opinion will be filed in its stead. 

The Petitions for Rehearing and Rehearing En Banc are

otherwise DENIED, no further petitions for rehearing will be

accepted. 

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9373
OPINION

SCHROEDER, Chief Judge: 

Defendant/Appellant City of Healdsburg (“Healdsburg”)

appeals the district court’s judgment in favor of Plaintiff/

Appellee Northern California River Watch (“River Watch”),

an environmental group, in this litigation under the Clean

Water Act (“CWA”). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination

System (“NPDES”) permit, violated the CWA by discharging

sewage from its waste treatment plant into waters covered by

the Act. Healdsburg discharged the sewage into a body of

water known as “Basalt Pond,” a rock quarry pit that had

filled with water from the surrounding aquifer, located next to

the Russian River. 

The issue is whether Basalt Pond is subject to the CWA

because the Pond, containing wetlands, borders additional

wetlands that are adjacent to a navigable river of the United

States. The district court held that discharges into the Pond

are discharges into the Russian River, a navigable water of the

United States protected by the CWA. The court followed the

United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). 

The Supreme Court, however, has now narrowed the scope

of that decision. See Rapanos v. United States, 126 S.Ct. 2208

(2006). In a 4-4-1 decision, the controlling opinion is that of

Justice Kennedy who said that to qualify as a regulable water

under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to

a waterway that is in fact navigable. 

In light of Rapanos, we conclude that Basalt Pond possesses such a “significant nexus” to waters that are navigable

in fact, not only because the Pond waters seep into the navigable Russian River, but also because they significantly affect

9374 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
the physical, biological, and chemical integrity of the River.

We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that

neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges.

BACKGROUND

The Clean Water Act of 1972 provides the foundation for

this case. See 33 U.S.C. § 1251. The primary objective of the

CWA is to “restore and maintain the chemical, physical and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). To effectuate this objective, one of the CWA’s

principal sections strictly prohibits discharges of pollutants

into the “navigable waters of the United States” without an

NPDES permit from the Environmental Protection Agency

(“EPA”). 33 U.S.C. § 1311(a). The CWA defines the term

“navigable waters” to mean “waters of the United States,

including the territorial seas.” 33 U.S.C. § 1362(7). 

Basalt Pond was created in approximately 1967 when the

Basalt Rock Company began excavating gravel and sand from

land near the Russian River. After the top soil was ripped

away, large machines tore out rock and sand. The result was

a pit. The pit filled with water up to the line of the water table

of the surrounding aquifer. Today, Basalt Pond, measuring

one half mile in length and a quarter mile in breadth, contains

58 acres of surface water. The Pond lies along the west side

of the Russian River, separated from the River by wetlands

and a levee. 

It is undisputed that the Russian River is a navigable water

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. 

The horizontal distance between the edge of the River and

the edge of the Pond varies between 50 and several hundred

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9375
feet, depending on the exact location and the height of the

river water. Usually, there is no surface connection, because

the levee blocks it and prevents the Pond from being inundated by high river waters in the rainy season. 

In 1971, 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 Russian River. Prior

to 1978, Healdsburg discharged the plant’s wastewater into

another water-filled pit located to the north. In 1978, Healdsburg began discharging into Basalt Pond. Although Healdsburg did not obtain an NPDES permit, it received a state

water emission permit as well as permission from Syar Industries, Inc., the current owner and manager of land and operations at Basalt Pond. 

The wastewater was discharged into Basalt Pond from the

plant at about 420 to 455 million gallons per year between

1998 and 2000. The volume of the Pond itself is somewhat

larger — 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. Basalt Pond would, of course, soon

overflow in these circumstances were it not for the fact that

the Pond drains into the surrounding aquifer. 

Pond water in the aquifer finds its way to the River over a

period of a few months and seeps into the River along as

much as 2200 feet of its banks. The district court made specific findings as to the impact of the wastewater ultimately

draining into the Russian River. First, the district court noted

that not all the sewage in the wastewater reached the River.

The wastewater is partially cleansed as it passes through the

bottom and sides of the Basalt Pond. Healdsburg refers to this

process as “polishing” or “percolation.” The wetlands around

Basalt Pond also help cleanse the outflow by passing the

effluent through the wetlands sediment. The filtration is effective in reducing biochemical oxygen demand and removing

some pollutants, but the filtration is not perfect. 

9376 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
The district court found that the concentrations of chloride

in the groundwater between the Pond and the Russian River

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 expert for Healdsburg, testified at trial 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 seeping from

Basalt Pond into the River 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. The district court thus

found that chloride from the Pond over time makes its way to

the River in higher concentrations than naturally occurring in

the River. This finding was further supported by Dr. Larry

Russell, one of River Watch’s trial experts. 

Plaintiffs filed this suit on December 4, 2001, alleging that

Healdsburg is violating the CWA by discharging wastewater

into Basalt Pond. After a four day trial, the district court made

findings of fact to support its holding that Healdsburg discharged sewage into a protected water of the United States in

violation of the CWA. The court’s holding was premised on

the legal conclusion that Basalt Pond is a “water of the United

States” within the meaning of the CWA. See 2004 WL

201502 (N.D. Cal.). This appeal followed. 

DISCUSSION

A. Wetlands Constituting Waters of the United States 

[1] Congress passed the Clean Water Act in 1972. The

Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

§ 33 U.S.C. § 1251(a). To that end, the statute, among other

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9377
things, prohibits “the discharge of any pollutant by any person” except as provided in the Act. § 1311(a). 

[2] After the CWA was passed, an issue arose concerning

the extent to which wetlands adjacent to navigable waters

constitute “waters of the United States.” In 1978, the Army

Corps of Engineers (“ACOE”) issued regulations defining

“waters of the United States” to include “adjacent wetlands.”

33 C.F.R. § 328.3(a)(7). The regulations specifically provide

that “[t]he term ‘waters of the United States’ means,” among

other things, “[w]etlands adjacent to waters.” Id. The regulations further specify that “[w]etlands separated from other

waters of the United States by man-made dikes or barriers,

natural river berms, beach dunes and the like are ‘adjacent

wetlands.’ ” 33 C.F.R. § 328.3(c). 

The Supreme Court has since confirmed that regulable

waters of the United States include tributaries of traditionally

navigable waters and wetlands adjacent to navigable waters

and their tributaries. Riverside Bayview Homes, 474 U.S. 121;

33 C.F.R. 328.3(a)(1),(4),(7). The only question reserved in

Riverside Bayview Homes was the issue of CWA jurisdiction

over truly isolated waters. See Rapanos, 126 S.Ct. at 2255 n.3.

Thus, the first issue before us is whether Basalt Pond and

the wetlands in it are isolated waters, or whether they constitute covered wetlands within the meaning of the regulations

and within the scope of Riverside Bayview Homes and

Rapanos. 

[3] The applicable regulations define wetlands as “those

areas that are inundated or saturated by surface or groundwater.” See 33 C.F.R. § 328.3(b). The record here reflects that

the Russian River and surrounding area, including the Pond

itself, rest on top of a vast gravel bed extending as much as

sixty feet into the earth. The gravel bed is a porous medium,

saturated with water. Through it flows an equally vast underground aquifer. This aquifer supplies the principal pathway

9378 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
for a continuous passage of water between Basalt Pond and

the Russian River. Beneath the surface, water soaks in and out

of the Pond via the underground aquifer. This action is continuous, 24 hours a day, seven days a week, 365 days a year.

Indeed, the parties have stipulated that the Pond and the River

overlie the same unconfined aquifer and that the land separating the two is saturated below the water table. 

[4] The Basalt Pond and its surrounding area are therefore

regulable under the Clean Water Act, because they qualify as

wetlands under the regulatory definition. The district court

explicitly found that the Pond is not only surrounded by

extensive wetlands, which connect to the Russian River, but

also that the Pond’s shoreline has receded so substantially that

much of the area that was originally Basalt Pond has turned

into wetland. This case is thus different than our recent decision in San Francisco Baykeeper v. Cargill Salt Div., 481

F.3d 700 (9th Cir. 2007), because here, the Pond is not isolated; it contains and is surrounded by wetlands, rendering it

regulable under the CWA. 

The remaining question is whether, under Rapanos and its

antecedents, Basalt Pond is a “water of the United States”

because it is sufficiently adjacent to the navigable Russian

River to confer jurisdiction or alternatively because it has a

substantial nexus to the River. 

The Supreme Court has not yet agreed upon a satisfactory

explanation of when wetlands are sufficiently adjacent to navigable waters to confer CWA jurisdiction. The leading case

addressing the issue is Riverside Bayview Homes, 474 U.S.

121, which was decided in 1985. The Supreme Court there

upheld CWA jurisdiction over wetlands that directly abutted

a navigable creek. The Court held that “the relationship

between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may

be defined as waters under the Act.” Id. at 134. 

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9379
[5] In Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S. 159 (2001)

(SWANCC), the Supreme Court again interpreted the CWA

term “navigable waters” and held that isolated ponds and

mudflats, unconnected to other waters covered by the Act,

were not “waters of the United States, because they were

either not sufficiently adjacent to navigable waterways or did

not have a substantial nexus to such waters.” The case

involved ponds that had been formed as a result of an abandoned sand and gravel pit mining operation, but were not “adjacent wetlands.” The ACOE regulations defined the ponds

nevertheless to be “waters of the United States,” because they

were “used as habitat by other migratory birds which cross

state lines.” 40 C.F.R. § 328.3(a)(3)(b). Under this “Migratory

Bird Rule,” ponds that are isolated from navigable waters may

constitute “waters of the United States” if they are used as

habitat by migratory birds. The Supreme Court rejected that

theory and held that the CWA does not protect isolated ponds

without a significant nexus to navigable water. The Court

explained that, “[i]t was the significant nexus between wetlands and ‘navigable waters’ that informed our reading of the

[Act] in Riverside Bayview Homes.” Id. at 167. 

The Supreme Court in SWANCC, therefore, invalidated the

Migratory Bird Rule but did not purport to reconsider its prior

holding regarding adjacent wetlands in Riverside Bayview

Homes. In Baccarat Fremont Developers, LLC v. U.S. Army

Corps of Engineers, 425 F.3d 1150 (9th Cir. 2005), we

expressly recognized that SWANCC invalidated the ACOE’s

Migratory Bird Rule, but did not overrule Riverside Bayview

Homes. Our conclusion in Baccarat is consistent with other

circuits that have also held that SWANCC did not overrule

Riverside Bayview Homes. See United States v. Hubenka, 438

F.3d 1026 (10th Cir. 2006); United States v. Johnson, 437

F.3d 157 (1st Cir. 2006). 

In the last term the Supreme Court also discussed the intersection between Riverside Bayview Homes and SWANCC.

9380 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
Rapanos, 126 S.Ct. 2208. The Rapanos decision involved two

consolidated cases, United States v. Rapanos, 376 F.3d 629

(6th Cir. 2004) (Rapanos I), and Carabell v. U.S. Army Corps

of Engineers, 391 F.3d 704 (6th Cir. 2004). 

The first consolidated case, Rapanos I, involved three land

parcels near Midland, Michigan. The first parcel, known as

the Salzburg site, consisted of roughly 230 acres. The Salzburg site included 28 acres of wetlands. The district court

found, on the basis of expert testimony, that water from the

site spilled into the Hoppler Drain, which carried water into

the Hoppler Creek and ultimately into the Kawkawlin River,

which is navigable. The second parcel, known as the Hines

Road site, consisted of 275 acres, which included 64 acres of

wetlands. These wetlands had a surface-water connection to

the Rose Drain, which carried water into the Tittabawassee

River, a navigable waterway. The final parcel, called the Pine

River site, consisted of some 200 acres. This site included 49

acres of wetlands, and a surface water connection linked the

wetlands to the nearby Pine River, which flowed into Lake

Huron. The wetlands at issue in all three parcels were neither

directly adjacent to nor entirely isolated from a navigable

water of the United States. 

The United States brought an action against the Rapanos

petitioners for civil violations of the CWA. Specifically, the

government claimed that petitioners discharged fill into protected wetlands, failed to respond to requests for information,

and ignored administrative compliance orders. After a 13-day

bench trial, the district court made factual findings upholding

the Corps’ jurisdiction over wetlands on the three parcels. On

the merits the court ruled in the government’s favor, finding

that violations occurred at all three sites. The United States

Court of Appeals for the Sixth Circuit affirmed, 376 F.3d 629

(2004). The other consolidated case, Carabell, similarly

involved discharges into wetlands that connected through a

series of waterways to a navigable water of the United States,

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9381
and the Sixth Circuit similarly held that the wetlands were

covered by the Act. 391 F.3d 704 (6th Cir. 2004). 

In Rapanos, a 4-4-1 plurality opinion, the Supreme Court

addressed how the term “navigable waters” should be construed under the Act. The plurality, written by Justice Scalia

for four Justices, would have reversed on the grounds that

only those wetlands with a continuous surface connection to

bodies that are “waters of the United States” are protected

under the CWA. Justice Stevens, writing the dissent for four

Justices, would have affirmed on the grounds that even wetlands not directly adjacent to navigable waters, but adjacent

to tributaries of navigable waters, are protected under the

CWA. Justice Stevens also argued that Riverside Bayview

Homes is still the controlling precedent and does not require

a “significant nexus” test. 

Justice Kennedy, constituting the fifth vote for reversal,

concurred only in the judgment. His concurrence is the narrowest ground to which a majority of the Justices would

assent if forced to choose in almost all cases. See United

States v. Gerke, 464 F.3d 723, 724 (7th Cir. 2006); see also

Rapanos, 126 S. Ct. at 2265 n.13 (J. Stevens dissenting).

Thus, as the Seventh Circuit extensively explained in Gerke,

464 F.3d 724, Justice Kennedy’s concurrence provides the

controlling rule of law for our case. See also Marks v. United

States, 430 U.S. 188, 193 (1997). 

Justice Kennedy said that when wetlands are isolated, or

adjacent only to a non-navigable tributary of a navigable

waterway, those wetlands are regulable under the CWA only

if there is a significant nexus between the wetlands at issue

and the navigable waterway. Rapanos, 126 S. Ct. at 2248. He

explained that a significant nexus exists “if the wetlands,

either alone or in combination with similarly situated lands in

the region, significantly affect the chemical, physical, and

biological integrity of other covered waters more readily

understood as ‘navigable.’ ” Rapanos, 126 S.Ct. at 2248.

9382 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
“When, in contrast, wetlands’ effects on water quality are

speculative or insubstantial, they fall outside the zone fairly

encompassed by the statutory term ‘navigable waters.’ ” Id. 

In addressing whether a hydrological connection satisfies

the “significant nexus” test, Justice Kennedy explained that a

“mere hydrologic connection should not suffice in all cases;

the connection may be too insubstantial for the hydrologic

linkage to establish the required nexus with navigable waters

as traditionally understood.” Id. at 2251. Rather, the “required

nexus must be assessed in terms of the statute’s goals and purposes,” which are to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” Id.

at 2248 (internal quotations and citations omitted). 

[6] Justice Kennedy thus established a substantial nexus

test for the applicability of the Act, concluding that “absent a

significant nexus, jurisdiction under the Act is lacking.” Id. at

2241. But, at the same time, Justice Kennedy also reaffirmed

the holding of Riverside Bayview Homes that wetlands adjacent to navigable waterways are covered by the Act, saying

that by virtue of the “reasonable inference of ecologic interconnnection,” assertion of jurisdiction “is sustainable under

the Act by showing adjacency alone.” Id. at 2248. This indicates that a significant nexus may be inferred when wetlands

are adjacent to navigable waters. 

In this case, we have both. The Pond is part of a larger wetland that is “adjacent” to the River within the meaning of Riverside Bayview Homes. There is also a “substantial nexus”

present under the analysis of Justice Kennedy in Rapanos. 

[7] The water from the Pond seeps into the river through

both the surface wetlands and the underground aquifer. The

district court’s findings of fact regarding this hydrological

connection support the conclusion that Basalt Pond has a significant effect on “the chemical, physical, and biological

integrity” of the Russian River. There is accordingly a subNORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9383
stantial nexus between the Basalt Pond and covered waters

sufficient to confer jurisdiction under the Act pursuant to Justice Kennedy’s substantial nexus test. See id. at 2241. 

With respect to the physical effect on the River, there is an

actual surface connection between Basalt Pond and the Russian River when the River overflows the levee and the two

bodies of water commingle. There is also an underground

hydraulic connection between the two bodies, so a change in

the water level in one immediately affects the water level in

the other. Basalt Pond drains into the aquifer and at least 26

percent of the Pond’s volume annually reaches the River

itself. Thus, there are several hydrological connections

between Basalt Pond’s wetlands and the Russian River that

affect the physical integrity of the River. 

In addition to these physical connections between Basalt

Pond and the Russian River, the district court found that there

is also a significant ecological connection. The Pond and its

wetlands support substantial bird, mammal 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 the district court observed,

these facts make Basalt Pond indistinguishable from any of

the natural wetlands alongside the Russian River that have

extensive biological effects on the River itself. 

The district court also found that Basalt Pond significantly

affects the chemical integrity of the Russian River by increasing its chloride levels. The chloride from Basalt Pond reaches

the River in higher concentrations as a direct result of Healdsburg’s discharge of sewage into the pond. Mr. John Lambie

testified at trial 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 seeping

9384 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
from Basalt Pond into the River is 36 parts per million, and

the chloride concentration on the west side of the River adjacent to the Pond is 18 parts per million. 

[8] In sum, the district court made substantial findings of

fact to support the conclusion that Basalt Pond has a significant nexus to the Russian River. The Pond’s effects on the

Russian River are not speculative or insubstantial. Rather, the

Pond significantly affects the physical, biological and chemical integrity of the Russian River, and ultimately warrants

protection as a “navigable water” under the CWA. Appellant’s discharge of wastewater into Basalt Pond without a permit, therefore, violates the CWA unless it falls within one of

the Act’s exceptions. 

B. Waste Treatment System Exception

[9] Appellant claims that even if Basalt Pond constitutes a

water of the United States it is exempt from protection under

the CWA’s waste treatment system exception. The CWA

excludes “waste treatment systems” from “waters of the

United States.” The CWA regulations specifically provide

that: 

Waste treatment systems, including treatment ponds

or lagoons designed to meet the requirements of

CWA (other than cooling ponds as defined in 40

CFR 423.11(m) which also meet the criteria of this

definition) are not waters of the United States. 

33 C.F.R. § 328.3(a)(8). 

Claims of exemption, from the jurisdiction or permitting

requirements, of the CWA’s broad pollution prevention mandate must be narrowly construed to achieve the purposes of

the CWA. See United States v. Akers, 785 F.2d 814, 819 (9th

Cir. 1986). Furthermore, appellant has the burden to prove

that this exception applies to its discharge of wastewater into

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9385
Basalt Pond. See United States v. First City National Bank,

386 U.S. 361, 366 (1967); Sierra Club v. Union Oil Company

of California, 813 F.2d 1480, 1484 (9th Cir. 1987) (vacated

on other grounds by Union Oil Co. of California v. Sierra

Club, 485 U.S. 931 (1988)). 

The waste treatment system exemption was intended to

exempt either water systems that do not discharge into waters

of the United States or waters that are incorporated in an

NPDES permit as part of a treatment system. See 44 Fed. Reg.

32858 (June 1, 1979); In the Matter of: Borden, Inc./Colonial

Sugars, 1984 1 E.A.D. 895 (E.P.A. 1984). In other words, a

permit is not required to discharge pollutants into a selfcontained body of water that has no connection to a water of

the United States, or into a body of water that is connected to

a water of the United States, but that is part of an approved

treatment system. The exception was meant to avoid requiring

dischargers to meet effluent discharge standards for discharges into their own closed system treatment ponds. See 45

Fed. Reg. 48620-21 (July 21, 1980) (emphasis added). Regulations under the CWA, however, still extend to discharges

from treatment ponds. Id. (emphasis added). 

[10] Basalt Pond may be part of a waste treatment system,

but it does not fall under the exemption because it is neither

a self-contained pond nor is it incorporated in an NPDES permit as part of a treatment system. For these reasons, we hold

that Basalt Pond is not a waste treatment system exempt from

coverage under the Act. 

C. The Excavation Operation Exception

Healdsburg also argues that Basalt Pond is exempt from

protection under the CWA because it is the site of an ongoing

excavation operation. In its preamble to the revisions to its

CWA regulation, the ACOE stated: 

9386 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG
For clarification it should be noted that we generally

do not consider the following waters to be “Waters

of the United States . . . .” 

* * *

(e) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in

dry land for the purpose of obtaining fill, sand, or

gravel unless and until the construction or excavation operation is abandoned and the resulting body

of water meets the definition of waters of the United

States (see 33 C.F.R § 328.3(a)).

51 Fed.Reg. 41206, 41217 (1986) (emphasis added). Appellant argues that Basalt Pond is used as part of an active gravel

excavation operation and is, therefore, exempt from NPDES

regulation. The district court correctly found that there is no

merit to this claim. 

The district court found that although Syar operates reclamation activities at Basalt Pond, those activities do not constitute an ongoing excavation operation as defined by the

ACOE’s exemption. The Basalt Rock Company, Syar’s predecessor, ceased its excavation of rock or sand from Basalt

Pond in 1984. Syar, through its reclamation activities, has

never extracted rock or sand from the pond. Rather, Syar has

pumped a slurry of sand and sediment into Basalt Pond. These

findings support the conclusion that all excavation operations

at Basalt Pond have been abandoned. 

[11] Syar does continue to use Basalt Pond as a discharge

location for its surface mining operations at other locations,

but this does not constitute ongoing excavation operations.

The excavation operation exemption applies only to ponds

undergoing actual extraction. Basalt Pond is merely tangential

to Syar’s excavation of other lands. Our holding in Leslie Salt

clarifies that the ACOE extraction operations exemption does

NORTHERN CALIF. RIVER WATCH v. HEALDSBURG 9387
not apply to a body of water which might be part of general

commercial activity. 896 F.2d at 359. Rather, the exemption

applies only to bodies of water that are currently and directly

under active excavation. Id.; see also Golden Gate Audubon

Soc., Inc. v. U. S. Army Corps of Engineers (Audubon II), 796

F.Supp. 1306, 1315 (N.D. Cal. 1992). The district court correctly held that the excavation operations exception does not

apply in this case.

CONCLUSION

The Basalt Pond is part of a larger wetland adjacent to the

Russian River. It also has a significant nexus to the Russian

River, a navigable water of the United States. Healdsburg, by

discharging wastewater into the Pond without an NPDES permit, therefore, violated the CWA. The decision of the district

court is AFFIRMED. 

9388 NORTHERN CALIF. RIVER WATCH v. HEALDSBURG