February 26, 2020

County of Maui, HI v. Hawaii Wildlife Fund

ENVIRONMENTAL LAW

Does the CWA Require a Permit When Pollutants Originate from a Point Source but Are Conveyed to Navigable Waters by a Nonpoint Source?

CASE AT A GLANCE

The federal law known as the Clean Water Act (CWA) requires those who discharge pollutants into navigable waters from point sources to obtain a federal permit to do so. In this case, a county in Hawaii disposes of pollutants that originate from its wells—point sources—but the pollutants actually reach the navigable waters through groundwater, not a point source. The question, thus, is whether the CWA requires a permit when the pollutants originate from a point source but are transported by other means.

Docket No. 18-260
Argument Date: November 6, 2019
From: The Ninth Circuit
by David L. Hudson Jr.
Belmont Law School, Nashville, TN

ISSUE

Does the Clean Water Act (CWA) require a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater?

FACTS

Maui County’s Lahaina Wastewater Reclamation Facility has four underground injection control (UIC) wells that dispose of wastewater or treated sewage from homes and businesses in the area. It is the county’s main wastewater treatment plant.

The County disposes of almost all the sewage it receives—it injects approximately three to five million gallons of treated wastewater per day into the groundwater via its wells. Wastewater in at least two of its wells reaches the Pacific Ocean via groundwater. Thus, wastewater from the wells flows with the groundwater into the ocean.

A collection of environmental groups sued, contending that the County of Maui discharged effluent (outflowing water or sewage) through groundwater and into the ocean without the National Pollutant Discharge Elimination System (NPDES) permit required by the CWA. The federal district court ruled in favor of the environmental groups for three reasons. First, the court reasoned that the CWA applies to discharges to navigable waters from a point source even if the point source itself does not convey pollutants directly to the navigable waters. Second, the court concluded that the groundwater that conveys the wastewater to the ocean is a point source. Third, the court held that the groundwater here is itself a part of the navigable waters because of its “significant nexus” to the ocean.

The Ninth Circuit affirmed the district court based on the district court’s first rationale alone—that the CWA applies to discharges to navigable waters when the discharges originate from a point source but are not directly conveyed into the Pacific Ocean from the point source.

CASE ANALYSIS

The federal law known as the Clean Water Act (CWA) is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To achieve this objective, the Act prohibits the “discharge of any pollutant by any person.” It defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.”

There are several undisputed key facts in this case. First, the petitioner’s four wells are point sources within the meaning of the CWA. Furthermore, the effluent added by the petitioner’s treatment plant qualifies as a “pollutant” under the law. Finally, the Pacific Ocean—where the treated sewage ends up—is a “navigable water” within the meaning of the CWA. What is also not disputed is that the treated sewage actually directly reaches the ocean after mixing with groundwater.

The question in this case, which has recently divided the circuits, is whether a permit is required under the CWA’s point source program where pollutants are reaching navigable waters by a nonpoint source right before they are discharged into navigable waters.

Petitioner argues that “[p]oint source permitting is required only where pollutants are being delivered to navigable waters by point sources.” Petitioner explains that the structure of the CWA revolves around dealing with two different types of pollutants: those discharged from point sources and those discharged by nonpoint sources. Petitioner also argues that the statute is regulating those pollutants transported into navigable waters via point sources, not any pollutants that may originate from a point source. In other words, petitioner contends that the operative language of the CWA refers “...not [to] a point of origin but a means of transport.” The petitioner argues that the statutory language must be interpreted as a “means of delivery” test. Thus, according to petitioner, because the pollutants are transported into the Pacific Ocean via groundwater—not a point source—no permit is required under federal law.

The Chamber of Commerce, as amicus supporting petitioner, seizes upon the fact that it is groundwater that transports the pollutants into the Pacific Ocean: “The court of appeals’ expansion of the CWA disrupts that established framework by adding groundwater regulation into a statutory program that was never designed to regulate groundwater.”

Respondents counter that the pollutants enter into a “point source”—namely the four wells that the County of Maui designed for the purpose of handling wastewater, which it knows ultimately gets deposited into the Pacific Ocean. Respondents argue “the Act’s [CWA’s] language, purpose, structure, and history all establish that Congress intended to regulate any pollution of navigable waters that is fairly traceable to, and the foreseeable result of, point-source discharges.”

Respondents explain, “Either the County’s or EPA’s [Environmental Protection Agency's] view, by contrast, would open a substantial loophole in the CWA, allowing polluters to achieve indirectly what they cannot do directly: discharge pollutants from point sources into navigable waters without a permit.” Respondents also point out that the CWA “expressly requires that the NPDES permit program control disposal of pollutants in wells.”

SIGNIFICANCE

The Court’s decision should clarify a significant circuit split on the interpretation of the operative statutory language in this case and explain whether the CWA requires a permit when the pollutants ultimately reach into navigable waters originally from a point source but are transported via groundwater.

A group of agricultural business organizations, as amici supporting petitioner, warn that if the Court interprets the CWA to regulate the disposal of pollutants through groundwater, that this will impact several normal and routine agricultural activities, such as the handling of fertilizer and manure storage, which are injected into the soil and ultimately mix with groundwater. “The Ninth Circuit’s ruling—or any similar approach—thus has the potential to turn normal agricultural activity without an NPDES permit into a crime,” the organizations write.

Similarly, the National Association of Home Builders, as amicus supporting petitioner, warn that the respondents’ reading of the text could lead to further federal regulation of residential septic systems, many of which operate similarly to those operated by petitioner.

Furthermore, West Virginia and 19 other states argue that interpreting the CWA to mandate permits for pollutants that travel via groundwater into navigable water will upset the federal-state balance in this area. They point out that, currently, it is state environmental agencies that are responsible for dealing with pollutant disposals via groundwater.

However, 13 other states and the District of Columbia filed an amicus brief in support of respondents. They argue that “excepting discharges via groundwater or other conduits would undermine states’ ability to protect their navigable waters.”

Thus, this case about pollutants is about more than just statutory construction. It impacts larger concepts, such as federalism and the bounds of federal authority over pollutants that enter into navigable waters.

David L. Hudson Jr. is a visiting associate professor of legal practice at Belmont Law School in Nashville, Tennessee. He is also the author, coauthor, or coeditor of more than 40 books, including a coeditor of The Encyclopedia of the Fourth Amendment (2013). He can be reached at davidlhudsonjr@ gmail.com.

PREVIEW of United States Supreme Court Cases 47, no. 2 (November 4, 2019): 21–23. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner County of Maui, Hawaii (Elbert Lin, 804.788.7202)
  • For Respondents Hawai'i Wildlife Fund, et al. (David Lane Henkin, 808.599.2436)

AMICUS BRIEFS

In Support of Petitioner County of Maui, Hawaii

  • Agricultural Business Organizations (Timothy S. Bishop, 202.263.3000)
  • Chamber of Commerce of the United States of America (Aaron Michael Streett, 713.229.1234)
  • Edison Electric Institute, et al. (Thomas Allen Lorenzen, 202.624.2500)
  • Energy Transfer Partners, L.P. (Miguel A. Estrada, 202.955.8500)
  • Federal Water Quality Coalition (Alan Bruce White, 312.357.1313)
  • Florida Water Environmental Association—Utility Council; Florida Rural Water Association; Florida Electric Power Coordinating Group—Environmental Committee (Gary Vergil Perko, 850.222.7500)
  • Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc. (Paul D. Clement, 202.389.5000)
  • National Association of Clean Water Agencies (Richard Scott Davis, 202.789.6025) 
  • National Association of Home Builders of the United States (Thomas Jon Ward, 202.266.8230)
  • National Conference of State Legislatures, et al. (Jonathan Gerard Andre Monette, 202.785.0600)
  • National Federation of Independent Business Small Business Legal Center (Theodore Hadzi-Antich, 512.472.2700)
  • National Groundwater Association and Water Systems Council (Jesse James Richardson Jr., 540.327.7508)
  • Pacific Legal Foundation (Damien Michael Schiff, 916.419.7111)
  • United States (Noel J. Francisco, Solicitor General, 202.514.2217)
  • United States Senators (Sean Marotta, 202.637.4881)
  • Washington Legal Foundation (Richard A. Samp, 202.588.0302)
  • West Virginia, 19 Other States, and the Governors of Kentucky and Mississippi (Lindsay Sara See, 304.558.2021)
  • Wychmere Shores Condominium Trust and Longwood Venues & Destinations, Inc. (Kevin Michael McGinty, 617.542.6000) 

In Support of Respondents Hawai'i Wildlife Fund, et al.

  • Anderson County, South Carolina, and Decatur County, Tennessee (Caleb Adam Jaffe, 434.924.4776)
  • Aquatic Scientists and Scientific Societies (Royal C. Gardner, 727.562.7864)
  • Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)
  • Craft Brewers (Richard B. Kendall, 310.556.2700)
  • Fond du Lac Band of Lake Superior Chippewa (Elise Laine Larson, 651.287.4880)
  • Former EPA Administrators (Sarah Elaine Harrington, 202.362.0636)
  • Former EPA Officials (Shaun Alaric Goho, 617.496.2058)
  • Law Professors (Stephen E. Roady, 919.613.7061)
  • Maryland, et al. (Joshua Morris Segal, 410.576.6446)
  • Trout Unlimited (Roy T. Englert Jr., 202.775.4503)
  • Upstate Forever and Savannah Riverkeeper (Michael K. Kellogg, 202.326.7902)