Ninth Circuit Ruling Expands Clean Water Act Jurisdiction Over Groundwater Discharges
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.
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.