Legal Alerts Feb 2, 2018

Decision Could Expand Clean Water Act NPDES Permit Requirements

Ninth Circuit Rules in Hawaii Wildlife Fund, et al. v. County of Maui

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Addressing whether the Clean Water Act regulates the indirect discharge of pollutants into navigable waters, the U.S. Ninth Circuit Court of Appeals decided Thursday that the CWA prohibits the  injection of treated waste water into wells hydrologically connected to the Pacific Ocean without a permit.
 
The court’s interpretation could greatly expand the types of facilities required to obtain National Pollutant Discharge Elimination System permits, including water supply entities and municipalities that rely on groundwater storage or use retention basins to hold or treat water.
 
The case involves the County of Maui’s Lahaina Wastewater Reclamation Facility and its longstanding practice of disposing of treated sewage by injecting it into four wells. Environmental groups challenged the practice, claiming that, because the injected waste water eventually migrated through groundwater into the Pacific Ocean, the County was required to obtain an NPDES permit.
 
To determine whether the injection wells were connected to the ocean, state and federal agencies conducted a “tracer dye” study by injecting dye into three of the facility’s wells and monitoring the nearby coastal waters. Eighty-four days after injection, the study authors observed dye from two of the wells emerging from the seafloor about a half-mile from the facility. It was determined that the dye migrated through groundwater to reach the ocean. The U.S. District Court for the District of Hawaii granted the environmental groups’ motion for summary judgment, agreeing that the County was required to obtain an NPDES permit to dispose of waste water through the wells.
 
On appeal to the Ninth Circuit*, the County argued its wells did not convey pollutants directly into navigable waters, and, thus, it was not required to obtain an NPDES permit. The Ninth Circuit rejected the County’s argument, finding that the plain language of the Clean Water Act prohibits the discharge of pollutants from a point source to navigable waters regardless of whether the pollutant directly enters navigable waters or is indirectly conveyed to navigable waters through some other source.
 
The Court’s expansive reading of the Act would likely require numerous facilities and entities that were previously thought to be exempt to obtain NPDES permit coverage.
 
The County may appeal the decision to the United States Supreme Court.
 
*Best Best & Krieger represented as amici counsel a municipal water regulator group.
 
If you have any questions about the Ninth Circuit’s decision or what it means for permitting requirements, please contact the authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.
 

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