Ninth Circuit Decision Expands Potential Liability Under Clean Water Act
Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA) “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To accomplish this goal, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.”
In its recent decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir. Feb. 1, 2018), the Ninth Circuit Court of Appeals held that the County of Maui needed a CWA permit to dispose of wastewater through groundwater discharge wells because the discharge ultimately reaches the Pacific Ocean. In doing so, the Ninth Circuit has significantly muddied the waters regarding potential liability under the CWA.
Regulation of Groundwater Under CWA
The CWA provides that “the discharge of any pollutant by any person shall be unlawful,” unless it falls within certain narrowly prescribed exceptions. The primary exception is the National Pollutant Discharge Elimination System (NPDES), which provides for the issuance of permits allowing the discharge of pollutants within prescribed limits.
The appropriate scope of “waters of the United States” has frequently been the subject of environmental lawsuits. Because groundwater is not “navigable,” the CWA has been traditionally interpreted not to encompass groundwater discharges. Nonetheless, district courts have recently been willing to extend the reach of the CWA to situations where groundwater discharges ultimately reach to surface water.
District Court Decision
The County of Maui (County) owns and operates four wells at the Lahaina Wastewater Reclamation Facility (LWRF), the principal municipal wastewater treatment plant for West Maui. Wells 1 and 2 were installed in 1979 as part of the original 1975 plant design, and Wells 3 and 4 were added in 1985 as part of an expansion project. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the County’s primary means of effluent disposal.
In June 2013, the U.S. Environmental Protection Agency (EPA), the Hawaii Department of Health (HDOH), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study on Wells 2, 3, and 4 to gather data on, among other things, the “hydrological connections between the injected treated wastewater effluent and the coastal waters.” The study found “64 percent of the treated wastewater injected into [Wells 3 and 4] currently discharges [into the ocean].”
In the lawsuit that followed, the County asserted that a due process defense and argued that it should not have been required to obtain a NPDES permit because the statutory text of the CWA can be read to exclude groundwater discharge wells from the permitting requirement and because the state agency tasked with administering the NPDES permit program had not concluded that a NPDES permit was necessary. The district court summarily rejected the County’s argument and found that it had fair notice under the plain language of the CWA that it could not discharge effluent via groundwater into the ocean. The district court went on to find the County liable for discharging effluent through groundwater and into the ocean without the NPDES based on three independent grounds: (1) the County “indirectly discharge[d] a pollutant into the ocean through a groundwater conduit,” (2) the groundwater is a “point source” under the CWA, and (3) the groundwater is a “navigable water” under the Act.
Ninth Circuit’s Decision
The Ninth Circuit affirmed the district court’s ruling, agreeing that the County discharged pollutants from its wells into the Pacific Ocean in violation of the CWA and that the County had fair notice of what was prohibited.
In reaching its decision, the Ninth Circuit agreed with other the Second and Fifth Circuit Courts of Appeals in concluding that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County was 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 pollutants reached navigable waters at greater than de minimis levels.
As explained by the Ninth Circuit:
At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.
Notably, the court added, “we leave for another day the task of determining when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.”
The Ninth Circuit also again rejected the County’s argument that it did not have notice of the need for a NPDES permit. “As a ‘reasonable person would [have] underst[oo]d the [CWA]’ as prohibiting the discharges here, enforcement of the statute does not violate the due process clause,” the court held.
Implications for CWA Liability
The Ninth Circuit’s decision in Hawai’i Wildlife Fund v. County of Maui creates regulatory uncertainty for entities that discharge wastewater and potentially stormwater through processes that allow the discharges to infiltrate groundwater and reach CWA “navigable waters.” The Ninth Circuit also effectively created a new CWA test under which groundwater discharges that are “fairly traceable from the point source to a navigable water” fall under the purview of the statute.
As we have discussed in greater detail in previous articles, the EPA is currently working to recodify the Waters of the U.S. (WOTUS) Rule after rescinding the 2015 version adopted under the Obama Administration. Until the rule is final, questions regarding the connection needed between a point source and navigable waters will continue to generate litigation.
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.
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New Decision Expands Potential Liability Under Clean Water Law
Author: Daniel T. McKillop
Ninth Circuit Decision Expands Potential Liability Under Clean Water Act
Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA) “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To accomplish this goal, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.”
In its recent decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir. Feb. 1, 2018), the Ninth Circuit Court of Appeals held that the County of Maui needed a CWA permit to dispose of wastewater through groundwater discharge wells because the discharge ultimately reaches the Pacific Ocean. In doing so, the Ninth Circuit has significantly muddied the waters regarding potential liability under the CWA.
Regulation of Groundwater Under CWA
The CWA provides that “the discharge of any pollutant by any person shall be unlawful,” unless it falls within certain narrowly prescribed exceptions. The primary exception is the National Pollutant Discharge Elimination System (NPDES), which provides for the issuance of permits allowing the discharge of pollutants within prescribed limits.
The appropriate scope of “waters of the United States” has frequently been the subject of environmental lawsuits. Because groundwater is not “navigable,” the CWA has been traditionally interpreted not to encompass groundwater discharges. Nonetheless, district courts have recently been willing to extend the reach of the CWA to situations where groundwater discharges ultimately reach to surface water.
District Court Decision
The County of Maui (County) owns and operates four wells at the Lahaina Wastewater Reclamation Facility (LWRF), the principal municipal wastewater treatment plant for West Maui. Wells 1 and 2 were installed in 1979 as part of the original 1975 plant design, and Wells 3 and 4 were added in 1985 as part of an expansion project. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the County’s primary means of effluent disposal.
In June 2013, the U.S. Environmental Protection Agency (EPA), the Hawaii Department of Health (HDOH), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study on Wells 2, 3, and 4 to gather data on, among other things, the “hydrological connections between the injected treated wastewater effluent and the coastal waters.” The study found “64 percent of the treated wastewater injected into [Wells 3 and 4] currently discharges [into the ocean].”
In the lawsuit that followed, the County asserted that a due process defense and argued that it should not have been required to obtain a NPDES permit because the statutory text of the CWA can be read to exclude groundwater discharge wells from the permitting requirement and because the state agency tasked with administering the NPDES permit program had not concluded that a NPDES permit was necessary. The district court summarily rejected the County’s argument and found that it had fair notice under the plain language of the CWA that it could not discharge effluent via groundwater into the ocean. The district court went on to find the County liable for discharging effluent through groundwater and into the ocean without the NPDES based on three independent grounds: (1) the County “indirectly discharge[d] a pollutant into the ocean through a groundwater conduit,” (2) the groundwater is a “point source” under the CWA, and (3) the groundwater is a “navigable water” under the Act.
Ninth Circuit’s Decision
The Ninth Circuit affirmed the district court’s ruling, agreeing that the County discharged pollutants from its wells into the Pacific Ocean in violation of the CWA and that the County had fair notice of what was prohibited.
In reaching its decision, the Ninth Circuit agreed with other the Second and Fifth Circuit Courts of Appeals in concluding that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County was 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 pollutants reached navigable waters at greater than de minimis levels.
As explained by the Ninth Circuit:
At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.
Notably, the court added, “we leave for another day the task of determining when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.”
The Ninth Circuit also again rejected the County’s argument that it did not have notice of the need for a NPDES permit. “As a ‘reasonable person would [have] underst[oo]d the [CWA]’ as prohibiting the discharges here, enforcement of the statute does not violate the due process clause,” the court held.
Implications for CWA Liability
The Ninth Circuit’s decision in Hawai’i Wildlife Fund v. County of Maui creates regulatory uncertainty for entities that discharge wastewater and potentially stormwater through processes that allow the discharges to infiltrate groundwater and reach CWA “navigable waters.” The Ninth Circuit also effectively created a new CWA test under which groundwater discharges that are “fairly traceable from the point source to a navigable water” fall under the purview of the statute.
As we have discussed in greater detail in previous articles, the EPA is currently working to recodify the Waters of the U.S. (WOTUS) Rule after rescinding the 2015 version adopted under the Obama Administration. Until the rule is final, questions regarding the connection needed between a point source and navigable waters will continue to generate litigation.
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.
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