Ninth Circuit Blows Limiting Principle on “Point Source” Out of Water with CWA Ruling

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

In a recent decision in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 15-17447 (9th Cir. Feb. 1, 2018), the U.S. Court of Appeals for the Ninth Circuit became the first federal circuit court of appeals to hold that discharges  through groundwater to waters of the United States fall within the Clean Water Act’s jurisdiction.  Depending on how other courts of appeals decide pending cases presenting similar issues, this case could be a seminal one, ushering in an era of expanded Clean Water Act permitting requirements and citizen suits. 

Section 301 of the Clean Water Act prohibits “the discharge of any pollutant” unless in compliance with other provisions of the Act, such as § 402’s National Pollutant Discharge Elimination System (NPDES) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source.”  33 U.S.C. § 1362(12).  The Clean Water Act defines “navigable waters,” in turn, as “the waters of the United States.”  33 U.S.C. § 1311(7).

Thus, the issue presented in Maui is whether a discharge through groundwater can constitute an addition of a pollutant to waters of the United States from a point source, prompting regulation under the Act.  If regulated, non-compliance with the Act leaves a source open to government enforcement actions, as well as citizen suits, seeking injunctive relief and civil penalties.  33 U.S.C. §§ 1319, 1365.

In Maui, the County of Maui operated a wastewater treatment facility that used four underground wells to dispose of treated sewage.  Slip op. at 4, 5.  Scientific studies undisputed by the County established that at least some of the effluent from each well traveled through the groundwater into the Pacific Ocean, a water of the United States.  Id. at 5.  The County argued, however, that the Clean Water Act did not cover its discharges, since the discharges traveled from a point source (the wells) through a nonpoint source (the groundwater) before reaching a water of the United States (the Ocean).  Id. at 13.

The court held that the Clean Water Act covered Maui’s discharges since the original discharge was “from a point source,” “the pollutants are fairly traceable from the point source to a navigable water,” and “the pollutant levels reaching navigable water are more than de minimis.”  Id. at 19.  The court relied on several points in coming to this conclusion.

First, it assumed, without deciding, that groundwater is neither a point source nor a navigable water.  Id. at 12 n.2.  Second, since the wells are point sources, at least, the court held that the migration of pollutants from those wells satisfied the Clean Water Act’s point source requirement, even if the wells did not directly discharge to a water of the United States.  Id. at 9-10.

Third, the court cited the Supreme Court’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), as well as Second Circuit decisions on discharge of manure on fields and pesticides from fields and a Fifth Circuit decision on rainwater and sediment basins, in support of its holding.  Id. at 14-18.  Finally, the court made an argument based on the Clean Water Act’s purpose, stating that, “At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly.”  Id. at 25.

The Maui opinion leaves critical questions open, such as which types of indirect discharges the Ninth Circuit’s theory will cover.  In Maui, the Ninth Circuit emphasized the idea that the indirect pollutant discharge must be “fairly traceable from the point source,” rejecting the district court’s approach that any pollutant discharge to a navigable waterway triggers Clean Water Act jurisdiction, regardless of how that discharge got there.  Id. at 19.  The court explicitly left “for another day” the issue of whether “the connection between a point source and a navigable water” can ever be “too tenuous to support liability under the CWA.”  Ibid.

The Maui decision has rewritten Clean Water Act law through its expansive view of the Act’s discharge prohibition.  However, the full impact of the decision will depend, in part, on how other circuits address the same issue in pending cases.  See Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 and Sierra Club v. Virginia Electric and Power Co. d/b/a Dominion Virginia Power, Case No. 17-1895 (Fourth Circuit) and Tennessee Clean Water Network v. Tennessee Valley Auth., Case No. 17-6155 (Sixth Circuit).

Two earlier opinions from the Fifth and Seventh Circuits rejected the theory that discharges through groundwater to waters of the United States are covered by the Clean Water Act or Oil Pollution Act, which contains similar jurisdictional language.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).  The district courts have split on this issue.  Compare, e.g., Chevron U.S.A. Inc. v. Apex Oil Co., 113 F. Supp. 3d 807, 817 (D. Md. 2015) (not regulated) with Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 444 (M.D.N.C. 2015) (regulated).  How the remaining circuits decide the “indirect discharge” theory will determine the contours of Act—and whether the Supreme Court will need to weigh in.

Further, in light of the decision, EPA has issued a request for comment on the question of “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrological connection to the jurisdictional surface water may be subject to CWA regulation.”  The request asks for comment on a range of issues, such as whether EPA should clarify its past statements on such discharges, whether permitting such discharges would be “consistent with the text, structure, and purpose of the CWA,” and whether such discharges, if covered by the Clean Water Act, should be regulated under a program other than NPDES.

Left as is, the Maui decision could present significant issues across industry.  By holding that the Clean Water Act regulates discharges through groundwater without providing a limiting principle as to when the connection to U.S. waters is too remote, the Ninth Circuit has exponentially increased a source’s risk of liability under the Act.  Owners and operators of any source with the potential to release pollutants to groundwater, such as coal ash basins, wastewater ponds, slurry pits, underground pipelines, and others should particularly take note.

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