This week, the Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund, that groundwater infiltration and disposal of a pollutant is potentially subject to regulation under the Clean Water Act (CWA). This ruling expands the range of industrial facilities and operations that are considered CWA point sources, and are therefore required to obtain National Pollutant Discharge Elimination System (NPDES) permits. It is also expected to increase the number of citizen suits that allege unpermitted point source discharges at facilities.
The Supreme Court guidance for which facilities apply is vague. They state that it “depends upon how similar to (or different from) the particular discharge is to a direct discharge” and “time and distance will be the most important factors in most cases, but not necessarily every case.”
The Court states on page 16 that “some of the factors that may prove relevant” are:
- Transit time;
- Distance traveled;
- Nature of the material through which the pollutant travels;
- Extent to which the pollutant is diluted or chemically changed as it travels;
- Amount of pollutant entering navigable waters relative to amount that leaves the point source;
- Manner by, or area in which, the pollutant enters the navigable waters; and
- Degree to which the pollutant has maintained its specific identity at that point of entry.
While at the same time, rejecting the Ninth Circuit’s “fairly traceable” standard as too broad.
The Supreme Court indicates greater guidance and specificity may be achieved “through decisions in individual cases…the traditional common-law method, making decisions that provide examples that in turn lead to ever more refined principles, is sometimes useful, even in an era of statutes.” Thus, this ruling is expected to lead to additional time and costs related to compliance and litigation.
If these types of groundwater infiltration and disposal activities are applicable to your portfolio, and you’d like to contact Roux about technical strategies and next steps, please let us know using the form below: