Videos Mar 29, 2018

[WEBINAR] Fairly (or Unfairly?) Traceable: Are Discharges Through Groundwater Subject to the Clean Water Act?

BB&K Webinar


1. What is the status of Hawaii Wildlife Fund v. County of Maui?
Last week (March 30, 2018), the Ninth Circuit modified its decision in the case of Hawaii Wildlife Fund v. County of Maui and denied the County’s petition for rehearing by the full bench. The modifications did not change the outcome of the case. In the modifications, the court noted that other Circuit Courts have treated groundwater differently under the Clean Water Act, but then asserted that the Ninth Circuit’s “fairly traceable” standard is faithful to the Clean Water Act because it requires “some evidence of a link between discharges and contamination of navigable waters[.]” This denial of rehearing sets the case up for potential review by the United States Supreme Court.
2. Who does the modeling, i.e. who has the burden of proof on tying the source to a project?
The burden of proving (or disproving) that a pollutant is fairly traceable to a point source after traveling through groundwater varies. There are two general points in time when the task of assessing whether a discharge is fairly traceable arises. First, before a discharge occurs, a person needs to assess whether an NPDES permit will be required for an activity. At this point in time, a person proposing to discharge to groundwater may have to consider if that discharge will travel through groundwater to a navigable water.
Second, after a discharge occurs, a person claiming that the discharge occurred either without a required NPDES permit or in violation of an NPDES permit bears the burden of proving the pollutants in navigable waters are fairly traceable through groundwater to the point source. It is important to note that under the “fairly traceable” standard articulated by the Ninth Circuit, there is very little guidance regarding when a pollutant is fairly traceable, except by reference to Article III standing principles. Under Article III standing principles, courts typically set a low threshold for citizen plaintiffs, requiring a showing of an “identifiable trifle” for purposes of establishing standing. The Ninth Circuit attempted to exclude de minimis discharges from the “fairly traceable” standard, but expressly left for another day the definition of what is so negligible that liability does not attach. It is unclear how this de minimis exception related to an “identifiable trifle” and whether a “trifle” but “identifiable” connection will also satisfy the “fairly traceable” standard. Although the burden of proof will be on the plaintiff, the burden may be so low that the practical burden of proof may fall on a defendant to disprove liability – here, to disprove the traceability or to disprove the fairness of the traceability.
3. Given the uncertainty of tracking groundwater, how would someone perform a reasonable potential assessment as required under NPDES permits?
This is a very good question and cuts to the heart of why regulating discharges to groundwater are not appropriately regulated under the NPDES program. The Clean Water Act requires effluent limits to be imposed on any discharge to surface waters that have a “reasonable potential” to cause an exceedance of the water quality standards in the receiving water. The process involves assessing the pollutant load in the discharge and how it would interact with ambient conditions in the receiving water. Limits are not always one-for-one. Assimilative capacity is the receiving water comes into play, as does the nature of the pollutant at issue — like whether it is biologically available in the form it is being discharged. Discharges through groundwater complicate things in many ways, and it is questionable if a defensible analysis could be performed. This is because the pathway that a particular discharge may take to reach the surface water can change the volume and velocity at which the pollutants get there, and the form they are in when they get there. At a minimum, the analysis would require a level of study that is not presently required for NPDES permitting. This issue in particular highlights the fact that the Clean Water Act was designed to regulate discharges to surface waters, not groundwater.
4. Is there a way to remove monitoring parameters and/or reduce monitoring frequency if after required monitoring for eight consecutive quarters results in non-detects for pollutants listed in the Basin Plan for a region (applied to CA only)?
This seems to be a reasonable approach to addressing an apparent lack of discharge to surface waters. The discretion to allow that level of monitoring would lie with the permitting agency.

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