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 directly reach the ocean, they could—unlike runoff—be ascribed to specific point sources. The Ninth Circuit found this connection sufficient to impose CWA liability and thus trigger the requirement to obtain an NPDES permit.

Regulating Indirect Discharges

The Ninth Circuit assumed for the purposes of its decision that groundwater was neither a point source nor a navigable water. This move permitted the court address whether the CWA extends to releases of pollutants that indirectly reach navigable waters. By framing the issue before it this way, the court avoided addressing longstanding statutory and regulatory distinctions between surface water direct and indirect dischargers.

The panel concluded “indirect” discharges as defined by the court are regulated by the CWA. The court examined its holdings in Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984), and Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143 (9th Cir. 2010), and concluded that neither case distinguished between indirect and direct discharges. In both cases, the scope of liability under the CWA instead turned on “whether there was a point source from which the defendant discharged pollutants.” Hawai’i Wildlife Fund, slip op. at 14 (emphasis in original).

The court also looked to its sister circuits for support “that an indirect discharge from a point source … suffices for CWA liability to attach.” Id. The panel read Concerned Area Residents for Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), to have recognized liability for indirect discharges where manure flowed to navigable waters through fields. The court also concluded that two cases addressing aerial pesticide spraying had recognized that indirect discharges through the air are regulated by the CWA. See Hawai’i Wildlife Fund, slip op. at 16 (discussing Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180, 188 (2d Cir. 2010), and League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002).

The panel finally drew on the statute itself and Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). The court observed that Justice Scalia had recognized how the CWA does not prohibit the “’addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.” Hawai’i Wildlife Fund, slip op. at 17 (quoting Rapanos, 547 U.S. at 743 (emphasis in original)). Based on this observation in the plurality opinion, the Ninth Circuit found that limiting the CWA only to “direct” discharges would read into the statute a term that Congress had not included. See id. at 18.

In announcing this rule, the Ninth Circuit did recognize that there could be instances where “the connection between a point source and a navigable water is too tenuous to support liability under the CWA.” Id. at 19. The panel declined to address this question, leaving EPA, the states, dischargers, and lower courts to grapple with precisely what factual nexus is required between a point source and regulated water in order for this court-defined “indirect” discharge CWA to apply.

The Prospect of Broader CWA Liability

The Ninth Circuit’s holding that the requirement to obtain an NPDES permit extends to releases that indirectly reach navigable waters has the potential pose difficult compliance questions and to expand the range of activities covered by the CWA. Without limiting the NPDES program to direct surface water discharges, determining whether an activity requires a permit becomes more challenging. For example, it may not be obvious before an underground disposal well comes online or material is stockpiled for disposal whether water from these sources will, ultimately, through groundwater or other indirect means, reach a navigable water.

Under the Ninth Circuit’s reasoning, operations that disperse materials to land or in the air may have less comfort that these releases are unregulated. Weather conditions or other forces may cause these released materials ultimately to reach navigable waters. The court’s opinion in Hawai’i Foundation suggests that these releases—so long as they can be ascribed to their original source—would require NPDES permits.

Further Review

The importance of the Ninth Circuit’s ruling and its impact on the scope of the CWA may invite more rounds of appellate review. Petitions for rehearing before the panel or rehearing en banc are due on February 15, 2018. Petitions for certiorari seeking review from the U.S. Supreme Court will be due either on May 2, 2018, or 90 days from an order denying rehearing.