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Ninth Circuit Holds That a Discharge of Pollutants That Travels Through Groundwater to Navigable Waters Requires an NPDES Permit

On February 1, 2018, in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447, a three-judge panel for the Ninth Circuit Court of Appeals ruled that treated effluent discharged into injection wells that then moves through groundwater to a “navigable” water is a discharge from a point source under the Clean Water Act (CWA).  Under the Court’s ruling, indirect discharges of contaminants from point sources that travel through groundwater and reach a navigable water are subject to NPDES permitting requirements.

The Clean Water Act prohibits the “discharge of any pollutant by any person,” without an NPDES permit.  33 U.S.C. §§ 1311(a), 1342(a).  “[D]ischarge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”  Id. § 1362(12).  A party violates the discharge prohibition when it (1) discharges (2) a pollutant (3) to navigable waters (4) from a point source, without an NPDES permit.

In this case, the County of Maui discharges treated effluent from its wastewater reclamation facility to four injection wells.  The facility does not have an ocean outfall; rather, the wells serve as the primary means of effluent disposal.  Based on expert testimony, tracer dye studies, and concessions from the County in the record, it was undisputed that the treated effluent from the injection wells reaches the Pacific Ocean.  The district court found that the County was liable under the CWA for discharging pollutants without a valid NPDES permit.

The Ninth Circuit affirmed.  The Court easily found that a well constitutes a “point source” under the CWA, given that the statute explicitly refers to a well as an example of a “point source.”  The Court also found that the treated effluent discharged from the wells constitutes a “pollutant.”  The treated effluent also reached a “navigable” water: in this case, the Pacific Ocean.  Because the pollutants could be traced back to the discharge from the point source, the Court held that the County illegally discharged pollutants from a point source.

In its opinion, the Court rejected arguments from the County that its holding mistakes point source pollution with nonpoint source pollution, which is regulated differently under the CWA.  The Court explained that nonpoint source pollution is typically diffuse, resulting from dispersed activities over a large area, and is not traceable to a single source, and gave the common example of polluted runoff from roads washing into a waterway.  In contrast, the discharge from the wells is discrete, can be traced to a single discernible conveyance, and can be regulated with a single permit.

The Court also rejected the County’s argument that a point source must directly convey pollutants into a navigable water under the CWA.  The Court explained that this interpretation would read words into the statute that do not exist, namely the word “directly.”  The statute provides that the pollutants must come “from” a point source but does not detail how the pollutants must travel from the point source to the navigable water.  Additionally, the Court pointed out that its holding is consistent with rulings in other circuit courts that found point source discharges in cases where pollutants were discharged from a tanker, traveled through a field, and flowed into a navigable water, or where pesticides were sprayed from a plane, traveled through the air, and reached navigable waters.  The Court provided several more examples of cases recognizing the indirect discharge theory.

The Court summarized the reasoning of its holding in three parts: (1) there is a discharge of pollutants from a point source; (2) “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water”; and (3) the pollutant levels reaching the navigable water are not de minimis.  The Court emphasized the need to show that the pollutants are “fairly traceable” from the point source at issue, and that liability would not attach if pollutants reach a navigable water with no connection between the point source and the navigable water.

For more information on the Hawai’i Wildlife Fund ruling and implications from the case, please contact Brittany Johnson at bjohnson@somachlaw.com.

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