Energy + Infrastructure

Natural Resource Protection

Publications

Ninth Circuit Ruling Expands Clean Water Act Jurisdiction Over Groundwater Discharges

2/15/2018 Articles

A recent ruling by the Ninth Circuit Court of Appeals, which covers California, Oregon and several other western states, potentially extends Clean Water Act (CWA) jurisdiction to require permits for point source discharges that are merely indirectly conveyed to navigable waters. 

In Hawai’i Wildlife Fund v. County of Maui, Case No. 15-17447 (9th Cir. Feb. 1, 2018), the court held that Maui County’s unpermitted point source discharges—injections of treated wastewater into wastewater disposal wells—violated the CWA even though the wastewater reached a navigable water (the Pacific Ocean) only via groundwater.

This ruling significantly expands CWA jurisdiction and liability.  Under this holding, CWA permits may be required by the US Environmental Protection Agency and state implementing agencies for indirect discharges such as pipeline spills, ash ponds, leaking underground storage tanks, and surface impoundments. 

At the very least, the ruling provides plaintiffs’ attorneys and public interest organizations with additional ammunition to argue that such activities require a National Pollutant Discharge Elimination System (NPDES) permit under the CWA and, absent such a permit, result in CWA liability. 

Case Summary

The facts in Hawai’i Wildlife Fund presented a particularly compelling case for liability for indirect discharges.  Each day, Maui County injected approximately 3-5 million gallons of treated wastewater into groundwater via the wells, and the county conceded that the injected wastewater from all four wells enters the Pacific Ocean.  Indeed, a tracer dye study confirmed “a hydrogeologic connection” between the wells and Maui’s coastal waters.  The court described the evidence establishing a connection between the wells and the Pacific Ocean as “overwhelming.”  Slip Op. at *6.  (It is hard to imagine that all or even most future cases involving indirect discharges will present such an undisputed connection between the point source and the navigable water.)

Environmental groups sued the county under the citizen’s suit provision of the CWA, and the district court ruled on summary judgment that the county violated the CWA by discharging pollutants from its wells into the ocean.  The county appealed, but the Ninth Circuit affirmed the district court, holding the county liable under the CWA because:  “(1) the county discharged pollutants from a point source, (2) the pollutants [were] fairly traceable from the point source to a navigable water such that the discharge [was] the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water [were] more than de minimis.”  Slip Op. at *7.

The county had argued on appeal that a CWA NPDES permit was not required since the point source did not directly convey pollutants to navigable waters.  The Ninth Circuit disagreed, explaining that, “At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly.”  Slip Op. at *9. 

What the Ruling Means

In ruling against the county, the Ninth Circuit set forth a new standard for determining when liability attaches for indirect discharges, requiring only a “fairly traceable” connection.  With this “fairly traceable” requirement, the court expressly rejected EPA’s proposed standard, which would have required a “direct hydrological connection” between the point source and the navigable water. 

It remains to be seen whether other circuits will adopt the Ninth Circuit’s standard.  In the meantime, this holding – not to mention EPA’s recent rollback of the WOTUS rule – contributes to the lack of clarity industry faces in determining the scope of CWA liability and jurisdiction, as the Ninth Circuit declined to define the limits of the “fairly traceable” connection between an indirect discharge and navigable waters. 

For now, environmental managers should carefully consider the source and fate of point source discharges, notwithstanding what may initially appear to be a lack of connection to navigable waters. 

Firm Highlights

Publication

Nonprofit Quick Tip: State Filings in North Carolina and South Carolina

Welcome to  EO Radio Show - Your Nonprofit Legal Resource . Episode 75 is the tenth in a series of Quick Tip episodes focusing on the details of state registration of nonprofit corporations. With...

Read More
Publication

Insurance Market Crushes Wineries and Wine Country Homeowners

We keep hearing about how difficult it is for winery and vineyard owners to get property insurance these days, both for their homes and their wine businesses in California’s wildfire-prone areas. Those who have...

Read More
News

North Coast Industry Insiders Weigh In on Why California Cannabis Tax Revenue Slipped in 2023

Jeff Hamilton spoke to Susan Wood with the North Bay Business Journal for the article "North Coast Industry Insiders Weigh In on Why California Cannabis Tax Revenue Slipped in 2023." Read the article with Jeff's...

Read More
News

Scraping Battles: Meta Loses Legal Effort to Halt Harvesting of Personal Profiles

Alex Reese spoke to Matt Fleischer-Black of  Cybersecurity Law Report about the Meta v. Bright Data decision and its impact on U.S. scraping case law. Read the article here (paywall or trial).

Read More
Publication

Corporate Transparency Act: State of the Law and Beneficial Ownership Reporting Requirements

Key Points: Despite ongoing legal challenges, the Corporate Transparency Act (CTA) generally remains in effect and enforceable. Clients should continue to abide by its regulations. Initial reports for entities formed in 2024 are due within...

Read More
Publication

Corporate Transparency Act: A Guide on Beneficial Ownership for Nonprofit Executives

The Corporate Transparency Act, enacted as part of the National Defense Authorization Act for Fiscal Year 2021, represents a significant shift in regulatory requirements for entities across the United States. This act, set to...

Read More
News

Farella Announces 2024 Leadership Council on Legal Diversity Pathfinders: Taylor Rottjakob and John Ugai

Farella Braun + Martel is proud to announce that senior associates  Taylor E. Rottjakob and John M. Ugai have been named 2024 Leadership Council on Legal Diversity (LCLD) Pathfinders. Pathfinders have been identified as...

Read More
News

JPMorgan Chase Accuses TransUnion of Stealing 'Trade Secrets'

Intellectual property practice chair Eugene Mar provided expert commentary to American Banker for the article "JPMorgan Chase Accuses TransUnion of Stealing 'Trade Secrets'." In the article, he said: "By filing this as a trade...

Read More
News

Farella Braun + Martel Earns San Francisco Green Business Recertification

Read More
Publication

Employment Law Update for Nonprofits With Holly Sutton

Welcome to  EO Radio Show - Your Nonprofit Legal Resource . Charities, foundations, and their founders often request help addressing employment practices and compliance questions. In this episode, host Cynthia Rowland is joined by Holly...

Read More