Ninth Circuit Broadly Interprets Clean Water Act Jurisdiction

On February 1, 2018, the Ninth Circuit published Hawai’i Wildlife Fund v. County of Maui, which applied Clean Water Act (CWA) permitting requirements to well wastewater injections that migrate to the Pacific Ocean through groundwater.

The case centered on the County of Maui's discharge of effluent from its wastewater treatment plant. Under its practices at issue in the case, the County would treat sewage and then either sell it to customers for irrigation purposes or inject it into wells for disposal. In June 2013, federal and state agencies conducted a tracer dye test and determined that the well discharges were reaching the Pacific Ocean in approximately 84-days through groundwater.

Importantly, the County did not dispute that the injection wells constituted point sources under the CWA. Instead, the County argued that the CWA only applies to discharges flowing directly into navigable waters, not discharges into groundwater that "indirectly" reached the Pacific Ocean. In dismissing this argument, the Ninth Circuit held that the proper standard was whether a discharge was "fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into navigable water." Given that the tracer dye study and the County's concessions proved that discharges connected the injections to the "consistently-emerging" pollutants in the Pacific Ocean, the Court determined this standard was met. The Court declined to address whether the connection between a point source and a navigable water would ever be too tenuous to support liability under the CWA.

This case marks the first decision of several pending appeals addressing the same issues, but in different contexts. These cases include:

1. 26 Crown Associates, LLC v. Greater New Haven Regional Water Pollution Control Authority, appeal pending, No. 17-2426 (2nd Cir.)
2. Sierra Club v. Virginia Electric & Power Company, appeal pending, Nos. 17-1895, 17-1952 (4th Cir.)
3. Upstate Forever v. Kinder Morgan Energy Partners, appeal pending, No. 17-1640 (4th Cir.)
4. Tennessee Clean Water Network v. Tennessee Valley Authority, appeal pending, No. 17-6155 (6th Cir.)
5. Kentucky Waterways Alliance v. Kentucky Utilities, appeal pending, No. 18-5115 (6th Cir.)

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