NEWS

By Amena H. Saiyid

July 5 — Disposal of pollutants into underground wells does not require a Clean Water Act discharge permit regardless of whether the effluent containing the pollutants reaches the ocean, Maui County, Hawaii, told the U.S. Court of Appeals for the Ninth Circuit ( Haw. Wildlife Fund v. Cnty. of Maui, 9th Cir., 15-17447, brief 7/1/16 ).

A National Pollutant Discharge Elimination System permit is required for “discharge of any pollutant,” but the Hawaiian county clarified that “effluent injection into groundwater via a well is not a discharge of pollutants.” Rather, the Clean Water Act refers to such injections as disposals of pollutants into wells, the county said, citing 33 U.S.C. 1342(b)(1)(D).

Maui County's brief, filed July 1, responded to the Justice Department, which claimed at the end of May that treated wastewater discharges to groundwater with a direct hydrological connection to federally protected surface waters, the Pacific Ocean in this instance, require an NPDES permit.

At issue before the Ninth Circuit is whether the Lahaina Wastewater Reclamation Facility in Maui County needs an NPDES permit to discharge at least 2 million gallons of treated effluent daily into four onsite injection wells, which connect to the nearshore waters of the Pacific Ocean through a shallow groundwater aquifer.

Maui County is appealing a 2015 ruling by the U.S. District Court for the District of Hawaii, which held that the Lahaina Wastewater Reclamation Facility required an NPDES permit because the treated wastewater has been detected in the nearshore waters off the popular Kahekili Beach Park along the Pacific.

Distinction Is Important

The county said the distinction between disposal and discharge is important in this context.

“Congress' deliberate decision to classify well injection as ‘disposal' rather than ‘discharge' means NPDES permits are not required for such injections,” the county said.

Citing the Seventh Circuit's 1970 ruling, the county reminded the court that “ignoring the discharge/disposal distinction wreaks havoc with environmental laws. The words “disposal” and “discharge” cannot be used interchangeably because doing so would create a “senseless regulatory gap” for the Environmental Protection Agency that also has to regulate disposal of hazardous waste under the Resource Conservation and Recovery Act ( Inland Steel Co. v. EPA, 901 F.2d 1419, 31 ERC 1527 (7th Cir. 1990).

The environmental groups and the EPA ignore this fundamental distinction, according to the county brief.

“No case they cite holds that well disposal of pollutants into groundwater is subject to NPDES permits,” the county said.

They said the advocacy groups and the EPA emphasize that the Clean Water Act's purpose is to protect the nation's waters, but the county reminded the Ninth Circuit that “the generalized purpose does not trump the Act's express terms and override the discharge/disposal distinction that Congress enacted.”

The EPA and the groups also ignored the fundamental purpose of the Clean Water Act and that is to leave regulation of groundwater to states, according to the county, which reminded the court that Congress expressly rejected EPA's proposal to regulate groundwater during the 1971 hearings on Clean Water Act amendments.

Maui County attorneys Patrick Wong and Richelle Thompson joined attorneys Michael Shebelskie and Colleen Doyle, of Hunton & Williams LLP, in penning the county's brief.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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