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Maui or Not? Here Comes the Latest on the Hydrological Connectivity Theory

This article appeared in Water Quality and Wetlands, a publication of the ABA Section of Environment, Energy and Resources.

One of the most significant Clean Water Act (CWA) questions of the time––whether the CWA requires a permit for pollutants that originate from a point source but are conveyed to navigable waters via groundwater––may not be answered by the justices of the Supreme Court after all. The Court is scheduled to hear oral arguments on this question in Hawai’i Wildlife Fund v. County of Maui on November 6, 2019. But a recent decision by the Council of the County of Maui on Governance Ethics and Transparency (Council) could be a step toward settlement that may moot the oral argument before it happens. On September 20, 2019, the Council recommended that Maui’s County Council authorize a settlement of the case that includes “good faith” efforts by the County to obtain an NPDES permit and work to replace use of disposal wells with beneficial uses of the treated wastewater. See Lara Beaven, High Court’s Groundwater Case Uncertain Despite Maui, Inside EPA (Oct. 3, 2019) (citing proposed Resolution Authorizing Settlement). The City Council voted 5-4 to adopt the resolution but to date, Maui Mayor Michael Victorino does not recommend settlement. Id. Legal questions remain as to whether a vote to end litigation requires the mayor’s approval. It is not known whether the settlement will affect the pending oral arguments.

Three Cases, Three Outcomes, and Environmental Protection Agency’s Interpretive Statement

The Maui case is one of three cases that asked federal courts to decide whether the CWA requires a permit for discharges of pollutants that originate from a discernible point source but do not reach a navigable water until the pollutants first travel through groundwater. The Ninth Circuit in Maui ruled that permits are required for treated municipal wastewater discharged via four underground injection wells and “fairly traceable” to the nearshore ocean waters of Kahekili Beach Park. Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 765 (9th Cir. 2018). Similarly, the Fourth Circuit in Kinder Morgan Energy Partners, L.P. v. Upstate Forever ruled that pollutants left underground from a past pipeline rupture that reached jurisdictional waters via “direct hydrological connection” are subject to CWA permitting requirements. 887 F.3d 637, 651 (4th Cir. 2018). Then a pair of Sixth Circuit decisions held that pollutant “leaks” from coal ash ponds that reached navigable waters did not give rise to CWA permit requirements. Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436, 447 (6th Cir. 2018); Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925, 931 (6th Cir. 2018).

In early January 2019, the U.S. Solicitor General’s Office asked the Supreme Court to take up the central question in County of Maui: whether CWA permitting requirements apply to indirect discharges to groundwater that ultimately reaches navigable waters. See Brief for the United States as Amicus Curiae, County of Maui & Kinder Morgan Energy Partners, L.P., Hawaii v. Hawai’i Wildlife Fund, 139 S.Ct. 619 (2018) (Nos. 18-260 & 18-268). Because County of Maui involves the continuing addition of point source discharges to hydrologically connected groundwater, the Solicitor General urged the Court to choose this case over Kinder Morgan Energy Partners, L.P, which involves pollutants left from a past (not ongoing) spill. The Solicitor General’s brief advised the Court that the outcome of this case “has the potential to affect federal, state, and tribal regulator efforts in innumerable circumstances nationwide.” Id. at 13. The Court granted the petition for certiorari in County of Maui in February 2019 and briefing from the parties and more than 25 friends of the Court followed. Tennessee Clean Water Network, which is also on petition to the Court has not been granted certiorari, and the petitioners have since filed a motion to dismiss their appeal after the Tennessee Valley Authority agreed to implement cleanup actions at the coal ash ponds at issue. The petition to the Court in Upstate Forever, which asked the Court to consider whether the CWA permits are required for discharges to soil or groundwater with a direct hydrological connection to navigable waters, remains on hold pending the outcome of County of Maui. The Court could take up this case regardless of the final disposition of County of Maui.

Meanwhile, the Environmental Protection Agency (EPA) on April 15, 2019, issued its Interpretive Statement on the Application of the NPDES Program to Release of Pollutants from Point Sources of Groundwater, concluding that releases of pollutants to groundwater are “categorically excluded” from CWA permitting requirements. U.S. EPA, EPA clarified that the Interpretive Statement does not apply to the Fourth and Ninth Circuits. Some commenters believe the statement will have no bearing on the County of Maui case.

What Happens Next?

The Court has on occasion dismissed cases as “improvidently granted” in an action known as a “DIG.” The most recent DIG came in a case titled Emulex Corp. v. Varjabedian, which was set to consider a questing arising under the Securities Exchange Act of 1934. No. 18-459 (U.S. Apr. 23, 2019). After granting certiorari and hearing oral arguments, the Court dismissed the case on April 23, 2019, in a nine-word order: “The writ of certiorari is dismissed as improvidently granted.” The Court’s ability to dismiss cases in such manner stems from the unwritten “rule of four” and is usually decided in secretive process similar to the manner in which justices choose to accept or deny petitions in the first place. The Court has never issued a DIG in a significant environmental law case, but some believe that County of Maui may be the first.

The outcome of the County of Maui case is inextricably tied up with the definition of a Water of the United States (WOTUS) and evolving questions of cooperative federalism. The WOTUS definition (under both the 2018 and 2015 versions) excludes groundwater; but it is not clear whether a discharge into hydrological connected groundwater falls under CWA permit requirements. Most definitions of  waters of the state are broader and typically include groundwaters. Same state environmental regulatory agencies have permitting regimes for groundwater discharges and state laws to regulate areas such as the disposal ponds at issue in Tennessee Clean Water Network and Kentucky Waterways. These states have acted to retain their ability to continue to do so. For example, Alabama’s attorney general responded to a February 2018 request by EPA for comments on hydrologically connected groundwater discharges. Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water, 83 Fed. Reg. 34, 7126, 7128 (Feb. 20, 2018). Alabama’s response described the state’s groundwater programs, which have yielded cooperative work between the state’s environmental regulators and EPA, and warned that an expansion of the CWA permitting requirements would amount to a costly disruption of its well-established programs. Comments of Alabama Attorney General and Alabama Department of Environmental Management, Docket ID No. EPA-HQ-OW-2018-0063 (May 21, 2018). Other commenters believe that state programs are inadequate to manage groundwater discharges and protect hydrologically connected surface waters.

With multiple cases and regulatory programs at stake the only certainty ahead is that environmental practitioners, courts, and regulators must work together to cooperatively manage our waters—Maui or not.