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Wastewater in pond ruled illegal

by Bob Egelko, Chronicle Staff Writer
Friday, August 11, 2006

A federal appeals court, in a swift application of the Supreme Court’s new standards for federal regulation of wetlands, ruled Thursday that the city of Healdsburg illegally dumped sewage from a waste treatment plant into a pond whose waters seep into the Russian River.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco was the first interpretation by any appellate court of the high court’s June 19 wetlands decision, said Charles Tebbutt, lawyer for the environmental group that sued Healdsburg.

The Supreme Court, in a pair of cases from Michigan, said federal regulators can prohibit the pollution of wetlands — thousands of ponds, marshes and other small or seasonal waterways — if the wetlands have a significant connection to navigable waters, like a river or a lake. That connection may consist of a direct intermingling of waters or an environmental link, such as acting as a filter for pollutants before they reach the larger waterway, the court majority said.

The standard was more limited than previous interpretations of federal authority, which extended to any wetlands that were part of the same water system as a navigable waterway. But the definition of the new guidelines was left largely up to lower courts.

In Thursday’s case, the appeals court said the pond where Healdsburg dumps its treated wastes “significantly affects the physical, biological and chemical integrity of the Russian River” and thus satisfies the Supreme Court’s standard.

Known as Basalt Pond, it was created by sand and gravel mining that lasted from 1967 to 1984. The pond, a half-mile long and a quarter-mile wide, is separated from the river by a levee. Pond water drains into the surrounding soil-and-rock aquifer, and seeps into the river within a few months. Chloride from the treated wastewater has been measured at about three times its normal level in the river at a point near the pond, the court said.

The city has discharged wastewater into the pond since 1978, with approval from the state and the quarry operator but without a federal permit as of 2001, when the suit was filed. After being sued, Healdsburg obtained a federal permit, which limits waste discharges, said Tebbutt, a lawyer with the Western Environmental Law Center.

Upholding a lower-court ruling that the permit was required, the appeals court said the pond is linked to the river in several ways: by direct mingling of underground waters, by surface flows when the river overflows the levee, and biologically, by supporting fish and bird populations that are part of the Russian River ecosystem. That is enough to show a significant connection, said Chief Judge Mary Schroeder in the 3-0 ruling.

Tebbutt, who represented Northern California River Watch, said the ruling requires the city to follow the limits in its federal permit, rather than returning to its previous higher discharge levels.

The city’s lawyer was unavailable for comment.