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Hawaii Wildlife Fund et al. v. County of Maui and EPA’s Request for Comments on Clean Water Act Groundwater Coverage Hint at WOTUS Rule Changes

by E. Jacob Lubarsky

The Ninth Circuit Court of Appeal’s opinion in Hawaii Wildlife Fund et al. v. County of Maui, Case No. 15-17447, 2018 DJAR 1167 (February 1, 2018), initially telegraphed far-reaching implications in the application of the Clean Water Act (“CWA”), especially as it pertains to the permitting and enforcement of groundwater discharges that reach navigable waters.  However, on March 30, 2018, the Ninth Circuit amended its opinion as part of its denial of a petition for rehearing en banc (2018 DJAR 2943).  The amended, final opinion appears to reign in the potentially broad scope of the original opinion.  Nevertheless, the Hawaii Wildlife Fund opinion, even as amended, combined with the U.S. Environmental Protection Agency’s (“EPA”) recent request for comments on whether discharges from point sources that eventually reach surface waters may be subject to CWA regulation could signal a shift in how groundwater is regulated under the CWA.

In the initial Hawaii Wildlife Fund opinion, the Ninth Circuit ruled that the CWA regulates the discharge of contaminants into groundwater that subsequently reaches navigable waterways.  In that case, the County of Maui used injection wells to dispose of treated sewage water.  The County of Maui had been operating for years with state permits and with the assurance from local authorities that it did not require a National Pollutant Discharge Elimination System (“NPDES”) permit.  Plaintiff in Hawaii Wildlife Fund established through tracer dye studies that water containing more than de minimis amounts of contaminants injected into those wells was reaching the Pacific Ocean.  The court held that because the injection wells were point sources that eventually reached a traditionally regulated body of water, the County of Maui needed a pollution discharge permit under the CWA for its discharges to groundwater.  The court based its decision not on the point source being directly discharged to navigable water, but being “fairly traceable” to the groundwater that flowed to the Pacific Ocean.

Traceable pollutants demonstrating a hydrologic connection between the wastewater and Hawaii’s coastal waters led the court to reason that discharging to groundwater “does not preclude liability under the statute[,]” and that the connection between the point source and regulated body of water need not be “direct” and “immediate” for requiring a permit.  This ruling had the potential to significantly broaden the interpretation of the CWA regulations requiring permits for contaminant discharge by including discharges to groundwater when the ultimate discharge of pollutants is to surface waters under the umbrella of NPDES permit requirements.

In its amended opinion, however, the Ninth Circuit appears to dispel speculation about its holding in the case:  “We are not suggesting that the CWA regulates all groundwater.  Rather, in fidelity to the statute, we are reinforcing that the Act regulates point source discharges to a navigable water, and that liability may attach when a point source discharge is conveyed to a navigable water through groundwater.”  By amending its opinion, the court states that its “approach is firmly grounded in our case law, which distinguishes between point source and nonpoint source pollution based on whether pollutants can be ‘traced’ or are ‘traceable’ back to a point source.”  The Ninth Circuit thereby calms the waters of speculation with the amendments to its opinion.

On February 20, 2018, — and after the initial Hawaii Wildlife Fund opinion – EPA requested comments from interested parties on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.”  Historically, EPA and the Army Corps of Engineers (“COE”) have not considered groundwater to be “waters of the United States (“WOTUS”)” covered by the CWA.  Further, current EPA and COE rules do not specifically address the hydrologic connection question.  The EPA comment period closes on May 21, 2018.

While it is difficult to speculate with certainty what EPA will do with the comments it receives, the agency has several options including the issuance of a new rule or guidance related to groundwater with a direct hydrological connection to surface waters.  Given previous splits in Circuit Court decisions on this issue, EPA could also be seeking the best way to clarify whether these types of discharges are subject to NPDES permitting requirements.

Regardless of what action (or inaction) EPA takes, the issue of permitting related to groundwater discharges will continue to be litigated in the courts through government enforcement actions and citizen suits brought on behalf of private plaintiffs and non-governmental organizations.  Corporate, small business, and local government agency clients, should take notice of this currently unsettled CWA area that may require additional attention if relevant to a site or lawsuit.  As the Ninth Circuit stated in its final Hawaii Wildlife Fund opinion: “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.”

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