On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s decision, finding that the County of Maui violated the Clean Water Act (“CWA”) when it discharged treated effluent into underground injection wells, which then allowed the effluent to seep into the Pacific Ocean. The Ninth Circuit panel held that the wells were required to obtain National Pollutant Discharge Elimination System (“NPDES”) permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.
The County of Maui (“County”) owns and operates four disposal wells at its Lahaina Wastewater Reclamation Facility, the primary municipal wastewater treatment plant for West Maui. The four wells dispose approximately 3 to 5 million gallons of treated sewage wastewater per day, into groundwater aquifers. The County has operated Wells 1 and 2 since 1979, and Wells 3 and 4 since 1985. The plaintiffs, including the Hawaii Wildlife Fund and other associations (jointly “Plaintiffs”), and the County agree that effluent from all four wells eventually reaches the Pacific Ocean – indirectly – through the injection wells.
Plaintiffs filed suit in federal district court alleging that the County was in violation of the CWA. The district court held in favor of Plaintiffs, finding that the County was indeed in violation of the CWA at all four wells because the County was operating injection wells without an NPDES permit. The County appealed the district court’s ruling, arguing that the wells were not subject to the CWA permitting scheme.
Ninth Circuit Holding and Legal Reasoning
The CWA prohibits the “discharge of any pollutant by any person” without an NPDES permit. 33 U.S.C. § 1311(a). The statute, and a wealth of case law, requires an NPDES permit for discharge of a pollutant from a point source into a navigable water. Id. §§ 1311(a), 1342(a)(1).
Based on the above legal requirements, the Ninth Circuit found that each of the County’s four wells constituted a “point source” because the wells were “discernible, confined and discrete conveyances, from which pollutants are discharged.” Slip Op. at 9 (citations omitted).
Next, the Court held that the wells “discharged.” The County argued that the “point source itself must convey the pollutants directly into the navigable water under the CWA.” Id. at 12 (emphasis in original). In contrast, the County’s wells “discharge into groundwater, and then indirectly into the Pacific Ocean.” Id. (emphasis in original). The Court rejected this logic, finding that the CWA governs indirect discharges, as well as direct discharges into navigable waters. The Ninth Circuit stated there was an “undeniable connection between the wells and the Pacific Ocean.” Id. at 15. Effluent from the wells traveled into the Pacific Ocean only a half-mile away from the injection sites.
Third, the Court found that the County’s effluent injections were discharges into navigable waters because they were fairly traceable from the point source. The County contended that the injections constituted mere “disposal of pollutants into wells,” which should not be subject to the CWA. The Court rejected this, finding that well disposals constitute point source pollution when pollutants are discharged into a navigable water from a discrete source – evenly indirectly –and are fairly traceable to the point source, as was the case here. Id. at 22. A NPDES permit is required when pollutants discharged from a point source 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.” Id. at 19 (emphasis added).
For further proof that the injection wells discharged (indirectly) to a “navigable water,” Plaintiffs pointed to a University of Hawaii study that concluded “a hydrogeologic connection exists between Wells 3 and 4 and the nearby coastal waters of West Maui.” Id. at 6 (citations omitted). The Court also highlighted that “water derived in association with oil or gas production and disposed of in a well” that “alters the water quality of surface waters[,] [is] subject to NPDES permitting requirements.” Id. at 22 (citing 33 U.S.C. § 1362(6)(B)).
Finally, the district court dismissed the County’s claim that its due process rights had been violated, because the County had fair notice of the CWA requirements through the plain language of the statute. The Ninth Circuit also affirmed this holding.
Conclusion and Implications
The Ninth Circuit’s holding in this case is significant because it establishes that injection wells are subject to the CWA’s NPDES permit scheme even if such discharge is merely “fairly traceable” from the point source to a navigable water. Even though groundwater is not expressly subject to regulation under the CWA, groundwater can be an indirect transmission line to oceans, as well as a whole host of other navigable waterways. Therefore, injection into groundwater may be subject to regulation. However, note that the decision does not address “when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.” Slip Op. at 19. The Ninth Circuit left this determination for “another day.” Id.
The case is Hawaii Wildlife Fund et al. v. County of Maui, Case No. 15-17447 (9th Circuit, filed Feb. 1, 2018).