Association Files Brief in Ninth Circuit Groundwater Liability Litigation
(March 13, 2018) – NACWA joined a large group of national and California county, municipal, and water associations to file an amici brief March 8 in support of a Petition for Rehearing en banc that was filed by NACWA Member Agency the Maui County Department of Environmental Management.
A three-judge panel of the US Court of Appeals for the Ninth Circuit issued a unanimous decision in Hawaii Wildlife Fund v. County of Maui on February 1, addressing to what extent a point source discharge that reaches groundwater, and eventually discharges to a Clean Water Act (CWA) jurisdictional water, triggers the requirement for a CWA Section 402 National Pollutant Discharge Elimination System (NPDES) permit.
The appeal arose from a district court decision holding that migration of pollutants from properly permitted underground injection control (UIC) wells, operated by the County of Maui, through groundwater into hydrologically connected navigable waters, violates the CWA. NACWA filed an amicus brief with the Ninth Circuit in March 2016 urging reversal of the lower court ruling.
Unfortunately, the Ninth Circuit upheld the district court decision and created a new indirect discharge theory to hold Maui County liable under the CWA because (1) the County discharged pollutants from a point source (i.e., the wells); (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.
The Ninth Circuit’s ruling may have far-reaching implications including an expansion of the universe of sources subject to NPDES permit requirements, and increased exposure to citizen suit enforcement. NACWA is currently participating in two other groundwater liability cases pending in the Second and Fourth Circuits.