May 01, 2018

In Brief

John Jacus

Clean Water Act, indirect discharges to jurisdictional waters

 

Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), amended in part and rehearing en banc denied, Hawai’i Wildlife Fund v. County of Maui, 2018 WL 1569313 (Mar. 30, 2018).

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment rulings finding Maui County (County) violated the Clean Water Act (CWA) by discharging pollutants from four wells into the groundwater and then into the Pacific Ocean without a National Pollutant Discharge Elimination System (NPDES) permit. The court of appeals also found no due process violation because the County had “fair notice” of what was prohibited. The County conceded that treated wastewater effluent injected in wells 1 and 2 ran downstream into the ocean and a Tracer Dye Study demonstrated that effluent from wells 3 and 4 are hydrologically-connected to coastal waters. Ultimately, the County was liable under the CWA because (1) it discharged pollutants from a point source, (2) the pollutants were fairly traceable from the point source to the navigable water such that the discharge is the “functional equivalent” of a discharge in the navigable water, and (3) the pollutant levels reaching the navigable water are more than de minimis.

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