881 F.3d 754
9th Cir.2018Background
- The County of Maui operates four injection wells (Wells 1–4) at the Lahaina Wastewater Reclamation Facility (LWRF) that inject treated sewage effluent into groundwater; the Facility injects ~3–5 million gallons/day.
- It is undisputed (by concession and expert testimony) that effluent from the wells reaches the Pacific Ocean; EPA/HDOH/University tracer dye study showed Wells 3–4 discharge to nearshore submarine springs and estimated ~64% of injected wastewater from Wells 3–4 discharges to the ocean.
- Plaintiffs (Hawai‘i Wildlife Fund, Sierra Club–Maui Group, Surfrider Foundation, West Maui Preservation Association) sued under the Clean Water Act (CWA) for discharging pollutants to navigable waters without an NPDES permit.
- The district court granted summary judgment for plaintiffs, finding the County violated the CWA (Wells are point sources discharging pollutants to navigable waters via groundwater) and had fair notice.
- The Ninth Circuit affirmed: wells are point sources, indirect discharge through groundwater that is fairly traceable to the ocean can trigger CWA liability, and the County had fair notice that its conduct was prohibited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County discharged "pollutants" from a CWA "point source" requiring an NPDES permit | Wells are discernible, confined, discrete conveyances (wells) that discharge treated effluent and thus are point sources | County conceded wells are wells but argued discharges into groundwater that then reach the ocean are not covered because the point source must directly convey pollutants into navigable waters | Held: Wells are point sources and discharging pollutants through groundwater into the ocean can violate the CWA when pollutants are fairly traceable and more than de minimis at the navigable water. |
| Whether an indirect discharge (point source → groundwater → navigable water) is covered by the CWA | Indirect conveyance through groundwater does not excuse liability; circuit precedent allows liability where pollutant is released from a point source and reaches navigable water | County argued CWA requires the point source itself to convey pollutants directly into navigable waters (no intermediary) | Held: Indirect discharges are actionable; the statute does not require the point source to feed directly into navigable waters. |
| Whether disposing pollutants into wells is categorically excluded from NPDES permitting | Plaintiffs: ‘‘well disposal’’ may be subject to NPDES when pollutants from wells reach navigable waters | County: statutory scheme and references to well disposal show well injections are nonpoint-source disposals exempt from NPDES | Held: No categorical exemption; statute contemplates states may regulate well disposals but does not remove federal NPDES reach when discharged pollutants reach navigable waters. |
| Whether enforcement violates due process (fair notice) | Plaintiffs: Statutory text plainly prohibits additions of pollutants to navigable waters from point sources; County had notice | County: Ambiguity (state agency equivocal), reasonable belief that no NPDES permit required for wells | Held: County had fair notice from plain language; uncertainty or state inaction did not excuse noncompliance. |
Key Cases Cited
- Trs. for Alaska v. E.P.A., 749 F.2d 549 (9th Cir. 1984) (point-source/NPDES regulation principles)
- Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013) (distinguishing nonpoint runoff from discrete point-source conveyances)
- Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143 (9th Cir. 2010) (collection/channeling can create a point source even if pollutants travel through subsurface before reaching surface water)
- Concerned Area Residents for Env. v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) (point-source discharge can occur where pollutants are released from a discrete source even if they later pass through a field)
- Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir. 2010) (spray apparatus on vehicles can be a point source despite dispersal through air)
- Rapanos v. United States, 547 U.S. 715 (2006) (plurality discussion recognizing courts have enforced CWA when pollutants pass through conveyances before reaching navigable waters)
- N. Plains Res. Council v. Fid. Expl. & Dev. Co., 325 F.3d 1155 (9th Cir. 2003) (well disposals are not categorically exempt when they alter surface-water quality)