Ninth Circuit Decision Expands CWA to Indirect Discharges to Navigable Water

by Mark D. Johnson

On February 1, 2018, the 9th Circuit issued its ruling in Hawai’i Wildlife Fund v. County of Maui that expands coverage under the Federal Clean Water Act (CWA) to discharges of contaminants to groundwater that travel through groundwater to a “navigable water.” In Hawai’i, the Court found that underground injection wells that discharged contaminants to groundwater and migrated to the Pacific Ocean were “point sources” under the CWA.  The Court held that the CWA does not require the point source itself to directly discharge to navigable water if pollutants in navigable water are traceable to the point source.  In other words, indirect discharges to navigable waters could be a violation of the CWA.

It has been generally understood that CWA does not apply to discharges to groundwater because groundwater is not navigable water.  The underground injection wells at issue in Hawai’i were permitted under the Safe Drinking Water Act (SDWA).  Nonetheless, the Court held that discharges of contaminants from these wells that were ultimately released into the Pacific Ocean violated the CWA.  The Court found that the County which operated the wells was “liable under the CWA because (1) the County discharged pollutants from a point source, (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis.”

In reaching this decision the Court relied on the SCOTUS opinion in Rapanos v. United States which states the CWA forbids the “‘addition of any pollutant directly to navigable waters from any point source’ but rather the ‘addition of any pollutant to navigable waters.’”  The Rapanos Court also stated that CWA is likely violated “even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.”

What the Decision Means

The Hawai’i decision has significant impacts on industries such as oil and gas production and mining that utilize water to achieve or enhance production.  Indirect discharges from these operations, including surface water discharges that migrate to navigable water, could lead to liability under the CWA.  This expansion of potential CWA liability could lead to increased enforcement actions and bounty hunter citizen’s suits.

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