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9th Circuit’s ruling expands the scope of Clean Water Act

Viewpoint

The County of Maui is appealing the 9th Circuit ruling in Hawaii Wildlife Fund, et al. v. County of Maui to the U.S. Supreme Court. The 9th Circuit found the county in violation of the Clean Water Act (CWA) because it does not have a National Pollution Discharge Elimination System (NPDES) permit for the operation of its underground injection control wells at its Lahaina Wastewater Reclamation Facility (LWRF). The court ruled that since LWRF-treated effluent was fairly traceable from the wells through groundwater to the ocean, an NPDES permit was required.

In its 40 years of operation, the county has never been required to have an NPDES permit. Instead, these wells were permitted under the Underground Injection Control (UIC) regulations established under the federal and state Safe Drinking Water Acts.

I was retained by the county as an expert witness, and to analyze and evaluate NPDES permit issues in the case. I have 57 years of academic and professional experience analyzing the fate and transport of contaminants and tracers in the water environment, including rivers, lakes, groundwater and the coastal ocean.

The CWA requires an NPDES permit for discrete, single-point discharges to the waters of the United States (known as navigable waters, which do not include groundwater), and such permits are in place for the ocean discharges that I have been associated with in Hawaii (Kauai Island Utility Cooperative, Barber’s Point Refinery and East Honolulu Wastewater Treatment Plant).

In these cases, there is an identifiable single point of discharge to the ocean and NPDES permitting is required. To obtain such a permit, the applicant must identify the GPS coordinates, the volume and the pollutant characteristics at the point of discharge to the ocean, and perform a dilution study around the point of discharge to show compliance with water quality standards.

It is a fact that all groundwater on an island that is not removed by production wells or evaporation ultimately enters the ocean. So every facility that adds pollutants to groundwater, such as septic tanks, cesspools, storm water storage reservoirs, rain gardens and UIC wells, will add pollutant flow to the ocean. Under the 9th Circuit ruling, these sources close to the coast will likely require an NPDES permit.

For example, there were almost 88,000 cesspools in operation on the Hawaiian Islands in 2009, and more than 12,000 on Maui alone released untreated sewage — as much as three times the volume of LWRF treated effluent. Those located near the coast will likely require a permit because there is little doubt that pollutants entering groundwater from these sources will enter the ocean. An NPDES permit for each of these discharges will require identification of the point of discharge to the ocean and a demonstration of compliance with water quality standards, an almost impossible burden.

To understand the difficulty of permitting a facility that does not discharge from a single discrete point into the ocean, consider the tracer studies on the LWRF wells and the UH groundwater study on Hawaii. Tracer dye injected into Well 2 at LWRF was never detected in the ocean so that Well 2 flow into the ocean is unknown.

Some Well 3 and 4 tracer dye was found seeping from the ocean floor in transient locations, but the majority of its entry into the ocean is unknown. The UH study on sources of coastal pollution on Hawaii concluded “data from different [pollution] indicators were not always in agreement with one another on the intensity and location of sewage pollution.”

Furthermore, since the chemistry of treated effluent injected into the ground changes and it also mixes with other pollutant sources, such as from agricultural operations and cesspools, as it moves toward the ocean, it is almost impossible to demonstrate that a discharge for a particular permitted source is in compliance with ocean water quality standards.

Conclusion: If the 9th Circuit ruling prevails, it is likely that any coastline operation that adds pollutants to groundwater flowing to navigable waters will require an NPDES permit. This would be a dramatic and unnecessary expansion of the CWA NPDES permitting program. A better solution is to control the quality of water added to the groundwater flow.

* John List is an emeritus professor of environmental engineering science at the California Institute of Technology, a registered professional engineer in California and principal consultant at Flow Science Inc. His entire professional career has been devoted to research and the practice of engineering in protecting the environment.