Case No. 18-260 | 9th Cir.
Preview by Rachel Lerner
The Clean Water Act (“CWA”) regulates point source pollution through the National Pollutant Discharge Elimination System (“NPDES”) permitting program. Any discharge of a pollutant requires a permit under the NPDES program. The discharge of a pollutant is defined as “any addition of any pollutant to navigable waters from any point source.” Clean Water Act, 33 U.S.C. § 1362(12) (2018). The central question in County of Maui, Hawaii v. Hawaii Wildlife Fund is whether the CWA requires a permit for the discharge of pollutants from point sources that are conveyed to navigable waters through groundwater.
The County of Maui discharges treated wastewater into wells without a NPDES permit. Haw. Wildlife Fund v. County of Maui, 886 F.3d 737, 742, 752 (9th Cir. 2018). Some of this treated wastewater reaches the Pacific Ocean by passing through groundwater. Id. at 742–43. The Ninth Circuit held that these discharges require a permit because the county discharged pollutants from a point source (the wells) to navigable water (the Pacific Ocean). Id. at 744–45. The court’s only concern was whether the defendant discharged the pollution from a point source; the groundwater’s role in transporting the pollutants from the wells to the ocean did not preclude liability. Id. at 747. Therefore, because the pollutants are “fairly traceable” from the point source to the navigable waters, it was the functional equivalent of a discharge directly into navigable waters and requires a NPDES permit. Id. at 749.
The Fourth Circuit faced a similar issue and held that a discharge through groundwater requires a NPDES permit if there is a direct hydrological connection to navigable water. Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637, 650–51 (4th Cir. 2018). The court read the word “from” to mean a starting point, not a means of transport. Id. at 650. The Sixth Circuit rejected the notion that point source discharges require a permit if the pollutants are conveyed through groundwater. See Ky. Waterways Alliance v. Ky. Utils. Co., 905 F.3d 925, 932–33 (6th Cir. 2018). The court held that to be covered by the CWA there must be a direct connection between the point source discharges and the navigable water. Id. at 934. These decisions created a split.
The Supreme Court granted certiorari in County of Maui to clarify the scope of the CWA NPDES permitting program and to resolve the circuit split. The interpretation of the words “from any” in the definition of discharge of pollutants is one of the main points of contention in the case. The County of Maui takes the position that the word “from” does not mean a point of origin, but rather a means of transport. Only discharges that enter navigable waters directly from a point source require a NPDES permit under their interpretation. Hawaii Wildlife Fund takes the position that the word “from” merely means a point of origin, and a conveyance through groundwater does not break the causal chain of liability. The respondents also take the position that exempting these discharges from the NPDES program will undermine the core functions of the CWA by allowing parties to circumvent permitting requirements simply by discharging pollutants into groundwater first.
The EPA released an interpretive statement after the Ninth Circuit decision. The EPA took the position that all releases to groundwater are excluded from the NPDES permitting program, even when pollutants are conveyed to navigable water via groundwater, regardless of hydrological connection or traceability. See U.S. Envtl. Prot. Agency, Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater 1 (2019).
This case could have major impacts on the scope of the Clean Water Act. Given the EPA interpretive statement and the current ideological makeup of the Court, it seems probable that the Court will vote for the county and hold that discharges of pollutants from point sources conveyed through groundwater to navigable water do not require a permit.