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Supreme Court to Determine Scope of Clean Water Act


April 2, 2019
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The U.S. Supreme Court is Set to Determine the Scope of the Clean Water Act

The U.S. Supreme Court is set to determine the scope of the Clean Water Act (CWA), an issue that has divided the federal courts of appeal. The issue in County of Maui, Hawaii v. Hawaii Wildlife Fund is whether the CWA regulates pollution that reaches surface water via groundwater.

Clean Water Act

As detailed in prior articles, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” without first obtaining a permit under the National Pollutant Discharge Elimination System (NPDES). Under the CWA,  “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.” The CWA defines the term “navigable waters” to mean “waters of the United States, including the territorial seas.” It defines the term “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”

Ninth Circuit’s Decision

The federal courts of appeals are deeply divided on the question whether a CWA “discharge of a pollutant” occurs when pollutants are released from a point source to groundwater and migrate through, or are conveyed by, groundwater to navigable waters. In County of Maui, Hawaii v. Hawaii Wildlife Fund, the Ninth Circuit Court of Appeals adopted an expansive interpretation of the CWA’s reach.

The suit centers on four wells owned and operated by the County of Maui (County). The Lahaina Wastewater Reclamation Facility (LWRF) is the principal municipal wastewater treatment plant for West Maui and processes four million gallons of sewage per day from approximately 40,000 people.

The wells operate under permits that authorize injection of wastewater underground pursuant to the federal Safe Drinking Water Act, but the County does not have a NPDES permit. In June 2013, the U.S. Environmental Protection Agency (EPA), the Hawaii Department of Health (HDOH), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study on Wells 2, 3, and 4 to gather data on, among other things, the “hydrological connections between the injected treated wastewater effluent and the coastal waters.” The study found “64 percent of the treated wastewater injected into [Wells 3 and 4] currently discharges [into the ocean].”

Several organizations subsequently filed suit against the County, alleging that it was violating the CWA by “discharging effluent through groundwater and into the ocean without the [NPDES] permit required.” The district court found the County liable for discharging effluent through groundwater and into the ocean without the NPDES based on three independent grounds: (1) the County “indirectly discharge[d] a pollutant into the ocean through a groundwater conduit,” (2) the groundwater is a “point source” under the CWA, and (3) the groundwater is a “navigable water” under the Act.

The Ninth Circuit affirmed, agreeing with the Second and Fifth Circuit Courts of Appeals that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County was liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater than de minimis levels.

“At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit,” the Ninth Circuit explained. “It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.”

Issue Before the Supreme Court

The Supreme Court granted certiorari on February 19, 2019. The justices have agreed to consider the following question: “Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”

The Court’s decision will bring much-needed clarity to an issue that has vexed the lower courts and resulted in significant uncertainty for the regulated community. As the County of Maui argued in its petition for certiorari, the Ninth Circuit’s decision is a “radical expansion” of federal authority.

The Court will consider the case next term. While oral arguments have not yet been scheduled, the justices will presumably take up the case when the term begins in October.

The Court’s decision in County of Maui, Hawaii v. Hawaii Wildlife Fund is distinct from the ongoing debate over the EPA’s proposed Waters of the United States rule, which will redefine what waterways are subject to federal regulation. The comment period for the WOTUS Rule expires on April 15, 2019.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.