Return to Maui and Upstate Forever

Posted on June 16, 2020 by Patrick A. Parenteau

Despite losing his bid to have the U.S. Supreme Court declare that wastewater  discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino, Law 360 reports,  has vowed to keep fighting . The Court did not rule on the merits of whether Maui’s injection wells do in fact require a permit, but instead remanded the case to the Ninth Circuit, which sent it back to the district court, for it to apply a newly announced test--make that determination applying its new test--whether Maui’s indirect discharge to the ocean is the “functional equivalent” of a direct discharge.

Justice Breyer explained that the “functional equivalent” test comprises  7+ factors. After shelling out a reported $4 M in legal fees (with little to show for it),  Mayor Victorino might have wanted to spare the taxpayers the additional expense of a trial and further appeals and agreed to the settlement that the County Council had approved last year.  But Apparently not.  Perhaps cooler heads may prevail at some point but meanwhile attention shifts to the remand to the Fourth Circuit of the other groundwater discharge case-- Upstate Forever v Kinder Morgan.

Followers of this blog may recall that this case involved a 2014 incident in which a ruptured pipeline owned by a subsidiary of Kinder Morgan Energy Partners spilled 369,000 gallons of gasoline into the soil and groundwater near Belton, South Carolina. Kinder Morgan repaired the pipeline and managed to recover some of the spill but not before it traveled through the groundwater and was detected in nearby wetlands and streams. The plume of gasoline has continued to contaminate surface waters despite implementation of a cleanup plan ordered by the South Carolina Department of Health and Environmental Control.

The Kinder Morgan litigation involved a federal Clean Water Act  citizen suit brought by the plaintiffs--Upstate Forever and Savannah Riverkeeper--alleging that the spill is polluting two tributaries of the Savannah River-- Browns Creek and Cupboard Creek-- and their adjacent wetlands. The pipeline ruptured less than 1000 feet from Browns Creek and 400 feet from Cupboard Creek. Plaintiffs asserted that the resulting spill constituted the unlawful discharge of pollutants from a point source in violation of section 301 (a) of the act.

In a split decision the Fourth Circuit panel ruled in plaintiffs’ favor. Over a stinging dissent by Judge Floyd the panel majority rejected Kinder Morgan’s argument that since the leak had been fixed there was no “ongoing violation,” a prerequisite to a citizen suit under the Supreme court’s Gwaltney decision.. The panel declined to adopt the Ninth Circuit’s “fairly traceable” test in the Maui case and acknowledged the contrary rulings of the Sixth Circuit in Kentucky Waterways Alliance et al v. Kentucky Utilities Co. and Tennessee Clean Water Network v. Tennessee Valley Authority--that leachate from coal ash pits did not constitute discharges from a point source. Instead the 4th Circuit panel cited EPA’s longstanding position (since disavowed by the Trump administration) that discharges from a point source via ground water having a “direct hydrologic connection” to surface water are subject to CWA permit requirements.

The Fourth Circuit is likely to send the case back to the South Carolina district court, which will have the unenviable task of trying to decipher Justice Breyer’s multi-factor test. Justice Breyer provided this not terribly helpful guidance:

Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.

If time and distance are controlling, the Belton pipeline leak would presumably qualify as the functional equivalent of a direct discharge. The leak occurred within 400’ of one stream and 1000’ of another. It reached the first one within two months. The gasoline did not undergo any chemical change and was not diluted to any substantial degree. More than half of the spill was not recovered and is continuing to pollute the surface waters So, it clearly meets the test, right?

And yet it does seem odd that an accidental spill from a broken pipeline that has since been plugged and is undergoing cleanup--albeit not at the pace the plaintiffs would prefer-- would be the functional equivalent of a direct discharge requiring a permit. Frankly the NPDES program seems a poor fit for a release resulting from an accident rather than one resulting from routine and periodic releases from routine operations.

The Maui injection wells, on the other hand, were used as an alternative to a direct ocean discharge via an outfall, which, legend has it, were opposed by the surfers at Kahekili Beach.  The facts of Maui do seem to easily fit within Breyer’s functional equivalent construct. So why didn’t the Court so rule?

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate?