Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1^st, the Court of Appeals for the Ninth Circuit held in Hawaii Wildlife Fund et al. v. County of Maui, No. 15-17447, that discharges of pollutants originating from a point source violate the Clean Water Act even if the pollutants first enter another means of conveyance—in this case groundwater—before entering into a navigable waterway. Despite recent EPA efforts to roll back certain environmental regulations, the court gave no deference to EPA’s amicus curiae proposed liability rule requiring a “direct hydrological connection” between the point source and the navigable water.

The decision affirmed the district court’s summary judgment ruling which stemmed from treated effluent discharges from four injections wells at the County of Maui’s wastewater treatment facility. The facility injected 3 to 5 million gallons of treated wastewater per day into groundwater via its wells without an NPDES permit. From there, some of the wastewater from all four wells traveled from groundwater into the Pacific Ocean, a navigable water under the CWA.

Under the CWA, the county contended that it is not sufficient to focus exclusively on the original pollutant source to determine whether an NPDES permit is needed and that how pollutants travel from the original point source to navigable waters matters. In other words, to trigger liability under the CWA, the point source itself must convey the pollutants directly into the navigable water. Because the groundwater here interrupted the direct discharge into a navigable water, the county argued it should not be subject to liability under the CWA.

The court cited decisions in the Ninth Circuit and the Second Circuit which stressed that CWA jurisdiction begins when the discharge comes from a discernible point source, and not necessarily when the point source discharges into a navigable water. To give an example, the court referenced decisions in the Second Circuit dealing with discharges of pesticides into air, which eventually made their way into navigable waters. The court reasoned that the pesticides were discharged from the pesticide equipment, and not the air, concluding that the spray apparatuses constituted a point source under the CWA from which a discharge occurred.

Interestingly, the court cited Justice Scalia’s plurality opinion in Rapanos v. United States to further support the notion that the CWA forbids discharges from point sources. 547 U.S. 715 (2006). Specifically, Scalia recognized that the CWA does not forbid the “’addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” Id. at 743 (plurality opinion) (emphasis in original) (quoting §§ 1311(a), 13612(12)(A)). On that basis, Scalia noted that “from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels from any pollutant that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.” Id. (emphasis in original) (citations omitted).

The Ninth Circuit’s decision underscores the role courts still play in shaping the environmental legal landscape. Although the EPA proposed a liability rule requiring a “direct hydrological connection” between the point source and the navigable water, the Ninth Circuit instead required only a “fairly traceable” connection. As the EPA continues its effort to roll back certain environmental regulations, dischargers must still be aware of decisions coming from the courts

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