On February 1, the Ninth Circuit issued a decision that has the potential to sweep regulated groundwater discharges that reach surface waters, and similarly remote-in-place discharge situations, into the Clean Water Act’s (CWA) NPDES permitting program. In Hawai’i Wildlife Fund v. County of Maui, --- F. 3d ---, 2018 WL 650973 (9th Cir. 2018), the court held that the County of Maui violated the CWA by discharging pollutants from wastewater injection wells that release pollutants indirectly to the ocean via groundwater without a National Pollutant Discharge Elimination System(NPDES) permit. The court determined that the CWA does not require pollutants to directly enter a navigable water from a point source in order to be regulated under the statute. By holding that such “indirect” discharges require NPDES permits, this decision has the potential to expand the scope of CWA liability and the NPDES program.
The case arose from the operation of the Lahaina Wastewater Reclamation Facility, a municipal treatment plan serving West Maui. The plant disposed of fully treated wastewater—3 to 5 million gallons per day—in a set of four injection wells that were already regulated under Safe Drinking Water Act (SDWA) permits. A study that used tracer dye showed that groundwater carried some of the constituents disposed of in the underground wells into the Pacific Ocean. In two separate orders, the district court below found that the wells were discharging in violation of the CWA. Haw. Wildlife Fund v. Cnty. of Maui, No. 12-00198, 2015 WL 328227 (D. Haw. Jan. 23, 2015); Haw. Wildlife Fund v. Cnty. of Maui, 24 F. Supp. 3d 980 (D. Haw. 2014).
A Traceability Standard
The County of Maui, which operated the plant, had argued that it was not liable under the CWA because discharges from its wells did not directly reach the ocean. The court rejected the county’s argument, holding that the ability to “trace back” pollutants from a surface water body to specific point sources—the wells—is sufficient, in and of itself, to establish a discharge from a point source requiring a permit. The court examined the Ninth Circuit’s definition of unregulated nonpoint source pollution, which “is not traceable to any single discrete source.” Hawai’i Wildlife Fund., slip op. at 10 (quoting Ecological Rights Found v. PG&E, 713 F.3d 502, 508 (9th Cir. 2013)). Point source pollution is thus the converse, according to the court: if the presence of pollutants can be traced to identifiable sources rather than diffuse ones, an NPDES permit is required.
The court distinguished the wells from nonpoint sources, such as runoff from roadways or utility poles, based on the wells’ role in collecting wastewater. The court reasoned that the underground injection wells effectively conveyed treated wastewater, via release to groundwater and then natural transport of the groundwater to the ocean, to a navigable water. See id. at 11. Although releases from the wells did not...
