July 2018 VOL 16 No. 7
Nicholas R. Hild, PhD.
Here is an introduction to a topic that EH&S professionals in Arizona should be very concerned about because, for the first time, it appears that one of the circuit courts has found that groundwater can be regulated under the Clean Water Act of 1972 (CWA). In this interpretation of how that was found to be true, the court based their opinion on very narrow circumstances; however, as with every environmental statute, case law tends to expand as other cases (and other circuit courts), find more law suits filed claiming applicability of the statute to broader and broader circumstances.
Thus, the reason I have chosen to share this with you in the Journal is because it should serve as a "heads up". You need to be aware that, even though this particular case was in Hawaii where the "point source" was discharging to groundwater that dumped into the Pacific Ocean, it is most likely that (lawyers in) other states will now find that there are reasons to look at this new "point source" application for discharges to arroyos (ephemeral or not), and streams, ponds or lakes---especially in western states like Arizona---and there will be more "cases" that apply the CWA to aquifers.
Credit goes to the Marten Law Group's Meline MacCurdy for bringing this to our attention, and now to yours for future reference. You can find out more at martenlaw.com (6/21/18). But remember: as EH&S professionals, we must keep up with the ever-changing state of the laws and statutes that are in a constant state of "change"---now you can add the CWA to your list of laws that may have an impact on groundwater management in the future. Here's Meline's excellent introduction and summary of her paper:
Ninth Circuit Holds Discharging to Groundwater Wells Requires Clean Water Act Permit
By Meline MacCurdy
March 6, 2018
A recent decision from the Ninth Circuit, Hawaii Wildlife Fund. v. County of Maui held that discharging sewage into groundwater wells requires a permit under the Clean Water Act of 1972 (as amended), ("CWA"), where those wells are hydrologically connected to the Pacific Ocean. The Ninth Circuit reached this ruling not because the groundwater was itself a regulated water body under the CWA, which has long been within the sole control of state regulators. Nor was there a dispute that the sewage indeed reached the Pacific Ocean via the groundwater injection wells. Rather, the issue turned on whether a discharge to wells that eventually migrates to the Pacific Ocean through groundwater constitutes a "point source" that requires a permit under the CWA. In holding that it does, the Ninth Circuit focused on the well at the point of discharge, concluding that it is a clear "discrete conveyance," and held that the discharge need not be "directly" to navigable waters, where the discharge to the "discrete conveyance" is "fairly traceable" to the ocean.
The decision is a noteworthy ruling on what has been termed the "conduit theory"—that groundwater can act as a "conduit" of pollutants from facilities/operations to traditional navigable water (surface water) and trigger the need for a CWA permit. As described below, this theory has found its way into some recent district court decisions in different fact patterns, which are currently on appeal. The Hawaii Wildlife decision will be evaluated in these cases currently moving through the courts and has led the Environmental Protection Agency ("EPA") to request public comment on the role of the conduit theory in the CWA.