Energy and Environment Monitor

Ninth Circuit Adopts Broad Definition of "Point Source" Discharge

February 7, 2018

By: Douglas J. Crouse

        Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements.

        The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through groundwater sources. The primary issue in the case was whether the injections constituted “point source” discharges that are subject to the CWA’s “National Pollutant Discharge Elimination System,” or “NPDES” requirements.

        The CWA defines “point sources” as “discernible, confined and discrete” conveyances (i.e., pipes, ditches, and channels). This straightforward definition makes sense, as dischargers can control and treat water at these structures to maintain water quality standards. Runoff and other diffuse discharges – “nonpoint sources” – are not regulated by the NPDES program under the CWA but may be subject to state requirements.

        The Ninth Circuit’s decision is the latest in a series of suits brought by the Sierra Club and others in recent years seeking to expand the definition of “point sources.” These suits have targeted sources that have never been regulated under the CWA, such as coal ash ponds, reclaimed valley fills, and trains. The argument is that a “point source” exists whenever a pollutant discharged from these sources eventually ends up in a river or stream, regardless of it gets there.

        Courts have taken different approaches to these suits, but some have adopted a broad definition of “point source” that has been suggested by the Sierra Club and others. Some have found, as the Ninth Circuit just has, that groundwater discharges, which are not otherwise regulated under the CWA, are point source discharges if there is a “direct hydrologic connection” between the discharge structure and surface water. For example, a Virginia district court decision that is currently under appeal in the Fourth Circuit followed this approach in a case involving a coal ash pond that was leaking to groundwater.

        EPA or Congress could clarify this issue by redefining what “point source” really means. While the current definition is seemingly clear enough, the recent broad interpretations by some courts have muddied the waters and will only encourage more CWA suits over such indirect discharges.

This article was authored by Douglas J. Crouse, Jackson Kelly PLLC.