The county of Maui, Hawaii, the American Farm Bureau, National Association of Manufacturers and others lost a case in the U.S. Court of Appeals for the 9th Circuit, which undoubtedly will have impact on agriculture.
Maui County installed four discreet wells into which it discharged treated effluent. The treated effluent then mixed into ground water and the pollutants then entered a navigable water, the Pacific Ocean. The case stands for the proposition that the Clean Water Act (CWA) does not require a point source to convey pollutants directly into a navigable water. The Court held that Maui’s pollutants “…were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into a navigable water…”.
The county apparently admitted that its four wells were to serve as a backup disposal method for water reclamation. It also admitted that the wells were a major conduit for effluent disposal into ground water and then on indirectly to the Pacific Ocean.
Apparently no expert could quantify how much of Maui’s effluent entered the Pacific or by what path the effluent traveled to get there. A county consultant declared that the effluent from Maui would not be used for reclamation purposes, but would be injected into wells and it was assumed the pollutant going into the wells would then enter into the ocean. Testing showed that 84 days after injection, tracer dyes introduced in two of the wells began to emerge from the sea floor.
The Court stated that Maui County could not plausibly deny the wells were point sources under the CWA. The Court reviewed the law regarding nonpoint source pollution, which is critical in protecting water runoff from farmers’ fields.
Disturbing language in the case states that runoff from roadways is nonpoint sourced, but “…that such runoff constitutes nonpoint source pollution unless it is later collected, channeled, and discharged through a point source.” (Does this sound like a tile runoff case brought by the City of Des Moines against three counties and farmers in Iowa?)
The Court goes on to talk about pollutants from rainwater runoff from utility poles. The Court correctly points out utility poles do constitute nonpoint source pollution under the CWA. However, Maui’s wells were developed to collect and allow pollutants to get into ground water thereby “…discretely collecting and conveying pollutants to a navigable water.”
Maui argued to the Court that its wells were not point sources because the well itself must convey pollutants directly to the Pacific Ocean. (Silly argument!) Maui asserted its discharges into ground water were indirect discharges into the Pacific Ocean. Maui argued ground water is a nonpoint source and therefore the county has no obligation to obtain a CWA permit. The Court made short work of this argument when it said it was concerned only if there was a point source involved from which Maui discharged pollutants.
Once the Court determined the wells were point sources, the argument was over.
To drive its point home, the 9th Circuit cited the case many of you have read about, Concerned Area Residents for Environment v. Southview Farm. This case involved a major dairy operation in New York State which transported liquid manure in tankers and discharged the manure on fields and the manure directly flowed into ditches and navigable waters. In 1994, another Circuit Court of Appeals concluded the tanker itself was a point source and therefore there was a direct connection between the farm field, the point source and navigable water.
The 9th Circuit rejects Maui’s argument that a point source must discharge directly into a navigable water through a pipe or ditch. Consequently Maui was held liable under the CWA because it was determined the wells were point sources and the pollutants going into the Pacific Ocean were “fairly traceable” from the wells to a navigable water. The Court concluded Maui’s discharge, even though indirect, is “…the functional equivalent of a discharge into the navigable water…”
The Court did offer one ray of hope when it said that it would leave for another day the issue of whether a point source such as the wells and the leaking to a navigable water might have a connection which is too tenuous to support liability under the CWA. This case will likely be used against agriculture.
(This column first ran on February 27, 2018 in Farm Futures.)
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