NACWA’S HOT TOPICS

IN CLEAN WATER LAWWhen Groundwater Discharges Trigger CWA Liability

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Is your utility navigating through the MS4 permit process? Do you have concerns with your Clean Water Act compliance requirements?

•Incredibly useful tool for stormwater novices and experts

•Covers wide range of topics from MCMs to water quality standards to permit appeals

•Provides practical advice and tips for small, medium, and large MS4s

•Includes hot topic issues and current trends in stormwater permitting

•Easy to navigate and includes valuable resources

MS4 STORMWATER

PERMITTING GUIDE

INTRODUCTION

Clean Water Act Violation?• Wastewater exfiltrates from a collection system, seeps into

groundwater and then flows to a river

• Pollutants from a groundwater recharge systems (used to convey stormwater or recycled wastewater into subsurface aquifers to augment public water supplies or to prevent land subsidence) travel via groundwater to a jurisdictional water

• Utility injects wastewater treated in accordance with SDWA into the ground and it travels through groundwater to the ocean

• Pollutants leach from a coal ash impoundment into groundwater and reach a nearby stream

AGENDA/FORMAT

CWA - Key Provisions

Judicial Resolution?• Ninth Circuit Decision - Maui

• Pending Circuit Court Litigation

• District Court Cases

Other Potential Fixes

• Regulatory - EPA Request for Comments

• Legislative

SPEAKERS

Moderator

Amanda WatersGeneral CounselNational Association of Clean Water AgenciesWashington, DC

Hilary MeltzerCo-Chair, NACWA Legal Affairs CommitteeDeputy Chief, Environmental Law DivisionNYC Department of LawNew York City, NY

Andre MonettePartnerBest, Best, & Krieger LLPWashington, DC

Sam BrownSenior AttorneyHunton & Williams LLPSan Francisco, CA

Patrick K. WongCorporation CounselMaui County, Department of Environmental ManagementWailuku, HI

Richelle ThomsonDeputy Corporation CounselMaui County, Department of Environmental ManagementWailuku, HI

CLEAN WATER ACT SECTION 402 – POINT

SOURCE REQUIREMENT

• CWA National Pollutant Discharge Elimination System (NPDES) permitting authority, whether implemented by EPA or an authorized State, is limited to regulating the discharge of pollutants from point sources to navigable waters.

• Congress prohibited any “discharge of any pollutant” to “navigable waters” unless it is authorized by a permit.

• Discharge of pollutant: “any addition of any pollutant to [WOTUS] from any point source”

• Point Source: “any discernible, confined and discrete conveyance,” including any pipe, ditch, discrete fissure, or container

• Groundwater is not a WOTUS or a point source

GROUNDWATER REGULATION

When taking final action on the proposed regulation of discharges from CAFOs, EPA rejected establishing nationally applicable effluent limitation requirements related to releases to groundwater with a direct hydrologic connection to jurisdictional water and recognized that

• “there are scientific uncertainties and site-specific considerations with respect to regulating discharges to surface water via groundwater with a direct hydrologic connection to surface water [and] conflicting legal precedents on this issue.”

QUESTION PRESENTED

Whether a point source discharge that reaches groundwater, and eventually discharges to a CWA jurisdictional water, triggers the

requirement for a CWA Section 402 NPDES

Hawaii Wildlife Fund v. County of Maui

United States Court of Appeals for the Ninth Circuit

Case No. 15-17447

MAUI COUNTY: FACTS & BACKGROUND

• Current population: 165,000 + approx. 60,000 visitors (av. 58,000 to Maui island only)

• Municipal sewered areas:

• Maui: Lahaina (West Maui), Kihei (South Maui), and Kahului (central)

• Lanai City

• Molokai

LAHAINA WASTEWATER RECLAMATION FACILITY

• Used EPA grant funding in 1970s

• required EPA determination of CWA compliance 33 U.S.C. §1298(a)

• All aware some pollutants would eventually reach ocean

• “Maui County is seeking to eliminate disposal by ocean outfall of either treated or untreated wastewater from all areas of the island, on the principle that such activity may result in the loss of a potentially valuable commodity (recycled water) while at the same time causing serious environmental alterations to the nearshore aquatic system.” (1973 EIS)

• After the effluent is injected, it is “likely that buoyant forces cause it to travel upward, intercept the unconfined groundwater at some point above, and flow seaward.” (EA and Negative Declaration related to facility expansion, 1991)

LAHAINA WWRF

• Plant built as reclamation facility, with gravity fed injection wells utilized for disposal of unused recycled water

• Facility is ½ mile from the coastline; 30 feet above sea level

• Initial capacity: 3.2 MGD - 2 injection wells

• Current capacity: ~ 9 MGD, inflow ~4.5 MGD

• Tertiary treated + UV disinfected used for irrigation with excess disposed of into 4 UIC-permitted wells

• The effluent is treated to the “R-1” level

• highest quality for recycled water in the State of Hawaii

• allowed for use on direct-contact food crops

LAHAINA WWRF PERMITTING HISTORY

• UIC permit required (Safe Drinking Water Act) as discharges from the wells enters a shallow groundwater aquifer beneath the facility.

• State UIC permit: 1985

• EPA UIC permit: 1995

• Prior EPA enforcement for leaking sewer pipes resulted in a countywide consent agreement

• CA did not raise NPDES permitting for any municipal treatment facility

• CA noted that effluent was always anticipated to intermingle with the groundwater and eventually flow seaward

ENVIRONMENTAL GROUPS RAISE NPDES PERMITTING

• West Maui groups felt Maui County not implementing sufficient reuse in timely manner

• Algal blooms attributed to injection of effluent (not substantiated)

• Groups raised NPDES permitting by mid-2000s

• Initially, EPA’s position was that it could address offshore water quality via the UIC permit

• EPA never responded to direct inquiries from groups or County until it made formal comments on the state UIC permit renewal in May 2015

TRACER DYE STUDIES

• 1993 EPA-funded study: 58 days of dye injection, no ocean detection

• 2010: EPA requires 401 WQ certification for re-issuance of federal UIC permit due to “possible” discharge to navigable waters

• 2011-2012: Tracer dye study funded by EPA, State Dept. of Health, Army COE, University of Hawaii

• Dye injected into Wells 3&4 • initially found ½ mile SW of facility, 3 months after injection

• estimate tail end 4+ years

• No dye from Well 2 ever detected offshore (Well 1 not tested)

TRACER STUDY– CONCLUSIONS & DISPUTES

• The plume of injected effluent is diffuse – in excess of 800 meters wide at the shoreline, acc’d to USGS study

• Wells 3&4 – less than 10% of the effluent disposed into these wells travels to submarine springs, immediately mixes with seawater

• Effluent from Wells 1&2 is so diffuse that it cannot be uniquely identified • there is no discernible discharge point for the effluent from these wells.

• With no discernible discharge point, it is difficult to see how an NPDES permit could be issued, or if issued, monitored for compliance as the point of discharge has not been identified

Lahaina Reuse: 37% avg (weather dependent) - as high as 46%

MAUI DISTRICT COURT — SETTLEMENT & APPEAL

TO 9TH CIRCUIT

• HI District Court ruled in favor of Plaintiffs on MSJs

• Novel “conduit” theory that the court acknowledged had no precedent; also ruled against County on “fair notice” argument.

• County settled, preserving right to appeal to 9th Circuit

• If unsuccessful on appeal, must implement $2.5m of reuse projects on the West side + plaintiffs’ attorney’s fees/costs, and $100,000 fine to US Treasury

• Must “diligently pursue” NPDES permitting for Lahaina facility. NPDES permit application filed Nov. 2012 (pending) and in 2015 for other 3 facilities using injection wells (Molokai, Kihei, Kahului)

• In lower court proceedings, County moved to join its regulators – State DOH and EPA as indispensable parties (court declined)

• EPA filed an amicus brief in support of plaintiffs in the 9th Circuit appeal (hydrologic connection + new “without significant interruption” test)

9TH CIRCUIT DECISION

• Feb 1 - Ninth Circuit upheld District court decision

• Indirect discharge theory - Maui County is liable under the CWA because

• County discharged pollutants from a point source

• pollutants are fairly traceable from point source to a navigable water, such that the discharge is functional equivalent of a discharge into navigable water, &

• pollutant levels reaching navigable water are more than de minimis

FAIR NOTICE — EPA ADMINISTRATOR PRUITT,

FEB. 17, 2017 REMARKS TO EPA STAFF:

• This is not going to sound earth shattering to you but I think it is very important to say, regulations ought to make things regular. • Regulators exist to give certainty to those they regulate. • Those that we regulate ought to know what we expect of them so they can plan

and outline resources …• [w]e need to be open, and transparent, and objective in rulemaking and follow

the letter of the law as we do so. • That will send a great message to those regulated, but more importantly they

will know what's expected of them and act accordingly.

• Which leads me to the second point, the rule of law. • As we do rulemaking, as we engage in process, it needs to be tethered to the

statute. The only authority that any agency has in the executive branch is the authority given to it by congress.

NEXT STEPS

• ~1,500 requests/year

• ~ 50 requests by a judge

• Hear between 15-25 cases/year

US SUPREME COURT

26 Crown Associates, LLC v. Greater New Haven Regional

Water Pollution Control Authority

United States Court of Appeals for the Second Circuit

Case No. 17-2426

SECOND CIRCUIT: COMPLAINT & DISTRICT

COURT DISMISSAL

• Plaintiff (property owner) claimed New Haven utilities were liable under CWA for sewer backups that can seep through cracks in basement into groundwater hydrologically connected to the Long Island Sound, half a mile away

• District Court dismissed case:

• Groundwater is neither a navigable water nor a point source

• Therefore Plaintiff did not “plausibly allege” that backups into their basement involved a discharge of pollutants from a point source to navigable waters

• Rejecting the “direct hydrological connection” theory of liability, Court found:

• “the passive migration of pollutants” through “a diffuse medium like ground water” is nonpoint source pollution

• District Court distinguished Peconic Baykeeper based on difference between air & groundwater as media

SECOND CIRCUIT: STATUS & NEXT STEPS

• Plaintiff appealed District Court’s dismissal

• Waterkeeper Alliance led an amicus brief supporting plaintiffs

• focused primarily on application of “direct hydrological connection” theory to other contexts

• E.g., unlined coal ash lagoons & liquid manure sprayed at CAFOs

• NACWA & numerous other associations & utilities joined New York City’s amicus brief in support of the New Haven utilities

• Oral argument

Upstate Forever v. Kinder Morgan

United States Court of Appeals for the Fourth Circuit

Case No. 16-4003

SUMMARY/DISTRICT COURT RULING

• Underground pipeline ruptured and released oil directly into the soil & groundwater

• Plaintiffs alleged that release was migrating to nearby waters through hydrologically connected groundwater

• Court held that while pipeline may be a point source, plaintiffs failed to demonstrate that the discharge had reached navigable waters

• The court further required there to be a direct discharge to surface waters, saying “migration of pollutants through soil and groundwater is nonpoint source pollution that is not within the purview of the CWA”

• Court rejected conduit theory of liability & held:• point source does need to be the pollutant’s original source • soil & groundwater themselves do not constitute “point sources” due to

their ability to serve as conduits for movement of pollutants

Sierra Club v. Virginia Electric Power Co.

United States Court of Appeals for the Fourth Circuit

Case No. 17-1952

LOWER COURT HOLDING

Ash impoundments are point sources

Unpermitted discharge of pollutants from such impoundments into

groundwater, followed by migration to surface waters,

violated the CWA

COAL ASH CASES PENDING IN SIXTH CIRCUIT

Kentucky Waterways Alliance v. Kentucky Utilities

• Case No. 18-5115

• Lower court holding: • discharge of pollutants to a navigable

water via hydrologically connected groundwater is not subject to the CWA’s NPDES permit requirement

Tennessee Clean Water Network v. Tennessee Valley Authority

• Case No. 17-06155

• Lower court holding: • same as Virginia Electric Power

RECAP OF TESTS/HOLDINGS

• 9th Cir - Maui: Point source discharge to groundwater of “more than [a] de minimis” amount of pollutants that is “fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into a navigable water” is regulated under CWA

• New Haven: Allegations of the pollution of navigable waters by means of passive ground water migration do not suffice as a matter of law to state a claim under the CWA

• Kinder Morgan: migration of pollutants through soil and groundwater is nonpoint source pollution that is not within the purview of the CWA

• TVA: (1) discharges to state-regulated groundwater require NPDES permits if the constituents end up in jurisdictional surface waters under the CWA, and (2) the elimination of the source of such migration to groundwater is the only possible remedy

• KY Waterways Alliance: discharge of pollutants to a navigable water via hydrologically connected groundwater is not subject to the CWA’s NPDES permit requirement

RISK ASSESSMENT/EXPOSURE TO LIABILITY

• Stakeholders/Regulated Entities

• Infrastructure/Operations

• Wastewater facilities/collection systems

• Water reuse - aquifer recharge, land subsidence, saltwater intrusion barrier wells

• Natural treatment systems

• Green Infrastructure

• Injection wells

• Lagoons

• Septic tanks

EPA REQUEST FOR COMMENTS ON DIRECT

HYDROLOGIC CONNECTION

• Feb. 20 Federal Register Notice

• Acknowledges confusion and details mixed case law on whether certain releases of pollutants to groundwater are within the jurisdictional reach of the CWA

• EPA's previous statements regarding CWA’s “discharge of a pollutant” provision where there is a direct hydrologic connection

• Whether there is a direct hydrologic connection such that a particular release to groundwater could be considered a “discharge of a pollutant” to a WOTUS & therefore subject to CWA

• characterized previously by EPA as a fact-specific determination

• Relevant evidence includes the time it takes for a pollutant to move to surface waters, the distance it travels, and its traceability to the point source

• These factors are affected by other site specific factors, such as geology, flow, and slope

EPA REQUEST FOR COMMENTS

• FRN asks numerous questions - can be boiled down to: whether, how, and what

1. Whether: EPA is asking whether it should review and revise its previous statements

2. How: EPA is asking, if yes to (1), how should it review and revise its previous statements (e.g., rulemaking, guidance)

3. What: EPA is asking, if yes to (1), what should its position/interpretation be on this issue

• Releases addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs?

• Deadline for Comments:

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