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Ninth Circuit Issues Decision in Novel Clean Water Act Case

By J. Michael Showalter on February 2, 2018
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Coastal Scene

The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them.

We have previously blogged regarding existing regulatory uncertainty under the Clean Water Act (CWA). In this case, the Ninth Circuit’s decision focuses on whether a CWA “point source” that indirectly transfers material to relevant waterways falls within the statute. The Ninth Circuit essentially rejected the connection that the wells were “indirect,” instead holding that they were analogous to stormwater collection systems, which had previously been found to be regulated by the CWA.

The court supported this conclusion based on the evidence that the County of Maui knew from the time the wells were constructed “that effluent from the wells would eventually reach the ocean some distance from shore.” The court also noted that the fact that “groundwater plays a role in delivering the pollutants from the wells to navigable water does not preclude liability under the statute.”

Photo of J. Michael Showalter J. Michael Showalter

Mike is a problem-solver whose practice focuses primarily on resolving high-stakes environmental disputes that are legally novel or technically complex.

He is well-versed in decades-old statutes and regulations that govern rapidly-evolving areas issues such as fracking, superfund remediation and carbon capture sequestration. Mike’s…

Mike is a problem-solver whose practice focuses primarily on resolving high-stakes environmental disputes that are legally novel or technically complex.

He is well-versed in decades-old statutes and regulations that govern rapidly-evolving areas issues such as fracking, superfund remediation and carbon capture sequestration. Mike’s mission is to cut through confusion and explain his clients’ needs to decision makers in terms they can easily digest.

Read more about J. Michael ShowalterEmail
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  • Posted in:
    Environmental and Climate
  • Blog:
    Energy & Environmental Law Adviser
  • Organization:
    ArentFox Schiff LLP

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