The Ninth Circuit Says Yes, Creating Confusion and a Circuit Split and Prompting Renewed EPA Attention to the Issue
In Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit held that a Clean Water Act (CWA) permit is required when pollutants in more than de minimis amounts are “fairly traceable from a point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” By requiring a permit under this test for pollutants that eventually reached navigable waters via groundwater migration, the County of Maui decision threatens to significantly expand the scope of the Act’s National Pollutant Discharge Eliminations System (NPDES) permit program, potentially incorporating an array of discharges — from all manner of industry — that did not formerly require CWA permits.
Understanding the County of Maui decision requires familiarity with the CWA’s distinction between point-source pollution and nonpoint-source pollution. A point source is a “discernible, confined, and discrete conveyance.” Nonpoint-source pollution encompasses pollution from any other means, most typically from naturally occurring processes like rainfall, wind dispersal, or groundwater migration that pick up and carry natural and manmade pollutants and deposit them into federally regulated waters. The distinction between point-source and nonpoint-source is important because the Act forbids the “addition of any pollutant to navigable waters from any point source” except as in compliance with certain provisions of the Act, such as the NPDES permit program. Nonpoint-source pollution, by contrast, is not subject to the NPDES program. Instead, Congress envisioned that states and local governments would control nonpoint source pollution through their own management programs.
In most instances, given Congress’s precise distinction between point- and nonpoint-source pollution, one can readily discern whether the Act’s NPDES permitting requirements apply. But where there are “indirect discharges,” that may not be the case. Indirect discharges originate from point sources that do not discharge into navigable waters but whose pollutants nonetheless reach navigable waters by other means. Sometimes those means may be point sources themselves, such as ditches. Other times they are not, such as atmospheric deposition or groundwater migration. Lower federal courts have struggled with whether and under what conditions indirect discharges are subject to the Act’s permitting requirements. The County of Maui decision is the latest court of appeals decision addressing those questions.
The Ninth Circuit Decision
In County of Maui, the focus was a County-operated wastewater treatment facility. Most of the treated wastewater from the facility is disposed of using ground injection wells. Once injected into the ground, some of the wastewater migrates through groundwater about a half-mile to the ocean. The County did not have an NPDES permit for the injection wells. The plaintiff organizations sued the County, arguing that such a permit is required.
On appeal, the Ninth Circuit affirmed the district court’s ruling that an NPDES permit is required for the County’s disposals of pollutants into wells, even though the wastewater reached the ocean by groundwater migration rather than from a point source conveyance. The Court emphasized that the wells clearly were the source of pollutants being deposited in the ocean as a result of the groundwater migration. Because the wastewater injected into the wells is “fairly traceable to a navigable water” in more than de minimis amounts the Court held that the injections themselves are “the functional equivalent of a discharge into the navigable water.”
A Circuit Split on Indirect Discharges
The County of Maui decision is one of numerous cases that have explored the CWA’s treatment of indirect discharges. Other courts have reached conclusions that are incompatible with the Ninth Circuit’s “fairly traceable” test. In Cordiano v. Metacon Gun Club, just to use one example, the plaintiff alleged that a shooting range needed an NPDES permit to discharge lead from an engineered earthen berm (used for bullet containment) into a nearby wetland. The plaintiff in Cordiano alleged that runoff and wind carried lead dust from the berm to the wetland. There was no question in Cordiano that the lead in the wetland was “fairly traceable” to the berm at the shooting range. Nevertheless, the Second Circuit held that the range owners did not need to obtain an NPDES permit, because the alleged pollution did not satisfy the Act’s requirement that “a point source discharge requires that pollutants reach navigable waters by a ‘discernable, confined and discrete conveyance[.]” It is difficult, if not impossible, to square the holding in the Cordiano case with the “fairly traceable from a point source” test from County of Maui.1
The Ninth Circuit’s decision in County of Maui represents the federal courts of appeals’ latest attempt to deal with the indirect discharge conundrum, but it surely will not be the last. Several cases pending in other circuits present variations on the same issue. In Sierra Club v. Virginia Electric Power, the Fourth Circuit will have to decide whether a Clean Water Act permit is required to maintain coal ash piles when arsenic from the piles leaches into groundwater and then migrates through the groundwater to federally regulated surface waters. The appeal in Tennessee Clean Water Network v. Tennessee Valley Authority presents substantially the same question to the Sixth Circuit.
As the facts in County of Maui, Cordiano, and Virginia Electric Power illustrate, regulation of indirect discharges under the NPDES program has potentially massive ramifications across an array of industries and private residences. Power plants, mines, farms, septic tanks, municipal storm and sewer systems, and waste storage facilities — to name just a few — could all be subject to vast new liabilities, depending on the extent to which courts are willing to hold that indirect discharges are legally equivalent to direct ones. Penalties for violating the Act’s permit requirements can be crippling.
Potential EPA Action
Given those substantial and possibly far-reaching consequences, it is not surprising that the Environmental Protection Agency (EPA) has solicited comment on whether the Agency should consider clarification or revision of prior EPA statements on this subject. According to EPA’s notice, which was published in the Federal Register on February 20, EPA will take public comment for 90 days on all aspects of the indirect discharge question pertaining to groundwater migration. The exceedingly open-ended nature of the notice shows EPA is open to exploring a broad range of meaningful actions that it might take to address the problem presented in cases like County of Maui. But even if EPA does take action — and that is by no means a certainty — it will likely be many months before it finalizes any substantive memoranda, guidance, or rule addressing the indirect discharge issue. For the foreseeable future, therefore, parties releasing pollutants from a point source that might ultimately reach jurisdictional waters will have to look to the courts for guidance about whether those discharges require permits under the CWA.