Waste Water Discharge & Disposal: 9th Circuit Clarifies Permit Obligations

Call this one a case of misdirection, but an Appellate Opinion seems to simplify matters. If anything having to do with environmental law can be considered simple.

In Hawaii Wildlife Fund, et al., v. County of Maui, the U.S. Ninth Circuit Court of Appeals upheld a district court’s decision: Maui’s waste water treatment plant operators should have obtained National Pollutant Discharge Elimination System (NPDES) permits, because waste from the plant’s wells leaked into groundwater, which then flowed into the Pacific Ocean.

For context, the 1972 federal Clean Water Act (CWA) regulates pollution discharged into U.S. waters. The NPDES permits allow for some waste to be carried to certain federal waters under strict guidelines.

Here’s how the Courts decided federal law should apply on a more local scale:

When the County of Maui first built its four wells in the 1970s and 80s for water reclamation and treated sewage disposal in Lahaina, officials knew that some of the pollutants would seep into the groundwater.

The Lahaina Wastewater Reclamation Facility purposely chose the well storage option for disposal rather than transporting the sewage directly to the ocean, deciding that the latter method would be too destructive of the state’s coastal ecology. By choosing to allow some of the treated effluent to be transported to the Pacific via well leakage into groundwater meant that the pollutants would enter the ocean farther away from the coastline.

Maui County argued NPDES permits were not necessary because the County is not liable under the CWA for three key reasons.

The first point of contention in Hawaii Wildlife v. County of Maui centers on whether or not the Lahaina facility’s wells can be considered “point sources” under the CWA, which basically means any container or conveyance that discharges pollutants. The 9^th Circuit opined the wells are containers and are not “nonpoint” sources – where pollution can’t be traced to a single point, e.g. water runoff from a parking lot. A tracer dye test in 2013 showed the effluent traveled from some of the wells to the ocean in 84 days.

Maui County further argued the discharge of effluent into the ocean is indirect, claiming that under federal law the pollutants must travel directly to navigable waters, not via groundwater.

Citing several other court decisions, the 9^th Circuit decided against the Appellant again:

. . . the County’s theory would only support liability in cases where the point source itself directly feeds into the navigable water—e.g., via a pipe or a ditch. That the circuits have recognized CWA liability where such a direct connection does not exist counsels against accepting the County’s theory.

Thirdly, Maui County claimed the pollution seeping into the Pacific should be categorized as disposal (not regulated under CWA), rather than discharge. This argument was also struck down by the Appellate Court, finding that when a disposal is also a discharge as seems to be the case at the Lahaina facility, an NPDES permit is required.

What Does the Ruling Mean for California?

Waste water has to go somewhere, and eventually it all flows into groundwater and then the oceans, even in California where state and regional restrictions are tough.

Here, the State Water Resources Control Board and nine Regional Water Quality Control Boards ensure the federal CWA is implemented correctly. In addition, California’s Coastal Zones Management Act and the Porter-Cologne Act also play a role in keeping state waters and coastlines cleaner. There are numerous regional regulations regarding water quality as well.

It all gets very confusing for the uninitiated – but any municipality treating waste water or sewage, as well as any land developer or business storing or transporting material waste of any kind, should be aware of the 9^th Circuit’s opinion on Maui County. When in doubt, apply through the appropriate Regional Water Quality Control Board for an NPDES permit.

Stephen T. Holzer is the Chair of our Environmental Practice Group.

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