Environmental -- 2018

Hawaii Wildlife Fund v. County of Maui   (9th Circuit)

Opposing conduit theory under Clean Water Act

This case involves whether a county needs to get a permit from the Environmental Protection Agency (EPA) for its injection of treated wastewater into underground injection control wells. The NAM and other groups filed an amicus brief supporting the county, and arguing that this activity is regulated under the Clean Water Act by the state of Hawaii, not the federal government. The issue is important because federal permits can be expensive and violations can subject the county, or other parties that must get permits, to fines and citizen suits.

At issue in the case is whether the emission is from a "point source." A point source is "any discernible, confined and discrete conveyance," and the trial court applied the so-called "conduit" theory to impose liability, holding that the unconfined groundwater around the well and ultimately reaching the Pacific Ocean acted as a conduit or conveyance.

Our brief argued that the Clean Water Act clearly distinguishes between point sources and nonpoint sources, and the conduit theory impermissibly extends the EPA's authority. If the theory is adopted, the National Pollutant Discharge Elimination Program (NPDES) could grow to an unworkable scale, and applying it to features that would require permits under the conduit theory simply would not work. Hawaii already has a nonpoint source management plan to address these kinds of issues at the state and local level.

On February 1, 2018, the Ninth Circuit affirmed the district court on the basis that the injection wells are the functional equivalent to discharging to the Pacific Ocean itself. It is possible that the County will ask the Supreme Court to hear an appeal of this decision, at which point the NAM would consider filing an amicus brief in support of that request.

Related Documents:
NAM amicus brief  (March 28, 2016)


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