Muddy Waters: How Expansion of Federal Water Jurisdiction Under County of Maui v. Hawai'i Wildlife Fund Will Impact Nebraska Agribusiness

• Jurisdiction: United States,Federal,Nebraska
• Citation: Vol. 54
• Publication year: 2022

54 Creighton L. Rev. 439. MUDDY WATERS: HOW EXPANSION OF FEDERAL WATER JURISDICTION UNDER COUNTY OF MAUI V. HAWAI'I WILDLIFE FUND WILL IMPACT NEBRASKA AGRIBUSINESS

MUDDY WATERS: HOW EXPANSION OF FEDERAL WATER JURISDICTION UNDER COUNTY OF MAUI V. HAWAI'I WILDLIFE FUND WILL IMPACT NEBRASKA AGRIBUSINESS

-Kaitlyn Westhoff, '22

I. INTRODUCTION ................................... 440

II. FACTS AND HOLDING ............................ 441

III. BACKGROUND .................................... 445

A. HISTORY OF THE UNITED STATES SUPREME COURT'S INTERPRETATIONS OF THE CLEAN WATER ACT...................................... 445

B. RAPANOS V. UNITED STATES...................... 446

C. THE ENVIRONMENTAL PROTECTION AGENCY'S WATER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

D. NEBRASKA'S GROUNDWATER ...................... 449

1. Hydrological Makeup of Nebraska ............ 449

2. Regulation of Nebraska Groundwater and Surface Water ............................... 451

3. Agriculture and Water Regulation in Nebraska .................................... 452

IV. ANALYSIS ......................................... 454

A. NEBRASKA FARMERS THAT DISCHARGE POLLUTANTS INTO GROUNDWATER WITHOUT A PERMIT MIGHT BE VULNERABLE TO LAWSUITS . . . . . 455

1. Agriculture Is the Largest User of Water in Nebraska .................................... 455

2. County of Maui Will Increase Litigation Due to Uncertainty ........................... 457

3. Agriculture Industries in Nebraska Are Vulnerable to Lawsuits After County of Maui ........................................ 460

B. THE NDEE IS UNLIKELY TO ENFORCE NPDES PERMIT REQUIREMENTS FOR EXISTING DISCHARGES INTO GROUNDWATER . . . . . . . . . . . . . . . . . 461

1. Nebraska Carefully Monitors Groundwater Quality ...................................... 461

2. The Purpose of NPDES Permits and the CWA Is to Protect Navigable Water Quality, Leaving Protection of Groundwater Primarily to States .......................... 463

3. Requiring NPDES Permits for Already-Regulated Discharges into Groundwater Will Not Fulfill the Purpose of the CWA and Will Not Be Enforced by the NDEE ...... 464

C. NEBRASKA COURTS SHOULD RULE AGAINST REQUIRING NPDES PERMITS FOR DISCHARGES INTO GROUNDWATER THAT REACH NAVIGABLE WATERS WHERE WATER QUALITY IS NOT IMPAIRED ........................................ 467

V. CONCLUSION ..................................... 470

I. INTRODUCTION

In April 2020, the United States Supreme Court concluded, in limited circumstances, Clean Water Act ^[1] ("CWA") regulations extend to state groundwater. ^[2] County of Maui v. Hawai'i Wildlife Fund ^[3] resolved a circuit split regarding when, if ever, a National Pollutant Discharge Elimination System ("NPDES") permit is required for discharges of pollutants from a point source into groundwater. ^[4] Under the CWA, NPDES permits are required for all discharges from a point source into "waters of the United States." ^[5] This phrase was most recently interpreted in Rapanos v. United States, ^[6] though Rapanos has left a mess of confusing litigation in its wake. ^[7] Many states, including Nebraska, maintain the NPDES permits, with the Environmental Protection Agency maintaining oversight. ^[8]

This Note will begin by explaining the facts and holding of County of Maui. ^[9] This Note will then provide background on the interpretation and application of the CWA, both nationwide and in Nebraska. ^[10] This Note will further describe the hydrological makeup of Nebraska and its regulation of groundwater and surface water. ^[11] This Note will indicate that, as the largest user of water in the state, the Nebraska agriculture industry is vulnerable to lawsuits as a result of the County of Maui decision. ^[12] Then, this Note will argue that, due to Nebraska's careful regulation of groundwater, the Nebraska Department of Environment and Energy is unlikely to enforce additional NPDES permits now possibly required under County of Maui. ^[13] This Note will then argue that, if citizens or citizen groups bring enforcement actions against farmers or ranchers in Nebraska, district courts should use the discretion granted to them by the County of Maui Court and not require NPDES permits where water quality is not impaired. ^[14] However, this Note will concede that where water quality is endangered, NPDES permits should be required where they will improve water quality. ^[15] This Note will conclude by asking Congress to take action to clear up ambiguous Supreme Court decisions by amending the CWA to reflect current understandings of groundwater and surface water integration. ^[16]

II. FACTS AND HOLDING

In County of Maui v. Hawai'i Wildlife Fund, ^[17] the Hawai'i Wildlife Fund, the Sierra Club-Maui Group, the Surfrider Foundation, and the West Maui Preservation Association brought suit in the United States District Court for the District of Hawai'i against the County of Maui in Hawai'i ("the County") for violating the Clean Water Act ^[18] ("CWA") by indirectly discharging pollutants into the Pacific Ocean without a National Pollutant Discharge Elimination System ("NPDES") permit, administered by the Environmental Protection Agency ("EPA"). ^[19] The Hawai'i Wildlife Fund argued that the County's discharges should require an NPDES permit to fulfill the purpose of the CWA to protect the health and safety of coastal waters, even though discharges into groundwater have not been traditionally covered by NPDES permits. ^[20]

The County operated four wastewater treatment wells which discharged between three to five million gallons of treated sewage into groundwater every day. ^[21] Both parties agreed that some of the discharged treated wastewater reached the Pacific Ocean, an undisputed navigable water. ^[22] The Hawai'i Wildlife Fund provided evidence that sixty-four percent of wastewater injected into two of the County's wells reached the Pacific Ocean within eighty-four days. ^[23] The increased phosphorus and nitrogen from the treated waste caused algal blooms that threatened the biodiversity of Hawai'i's coastal reefs. ^[24] The district court granted summary judgment for the Hawai'i Wildlife Fund, finding that the CWA required an NPDES permit for the discharged effluent that reached the Pacific Ocean. ^[25] The United States Court of Appeals for the Ninth Circuit affirmed the district court's decision based on a different standard than applied by the district court. ^[26]

The United States Supreme Court granted certiorari to resolve a circuit split created by the Ninth Circuit's decision in County of Maui, the United States Court of Appeals for the Fourth Circuit's decision in Upstate Forever v. Kinder Morgan Energy Partners, ^[27] and the United States Court of Appeals for the Sixth Circuit's decision in Kentucky Waterways Alliance v. Kentucky Utility Co., ^[28] because each circuit court created a different standard to determine whether the CWA required an NPDES permit for discharges of pollutants into groundwater when the pollutant reached a navigable water. ^[29]

In its opinion, the Supreme Court responded to the Ninth Circuit's approach, the County's approach, and the dissent's approach to EPA jurisdiction over groundwater, and the Court ultimately issued a compromise opinion between the different approaches. ^[30] The Ninth Circuit decision determined NPDES permits are required for discharges into groundwater that are the proximate cause of pollutants entering a navigable water. ^[31] The Court rejected this approach, reasoning such EPA authority would be too broad for several reasons: the interpretation of the word "from" in the CWA, the structure of the CWA, legislative history, and longstanding regulatory practice. ^[32] The County argued that any discharge that reached a water of the United States indirectly through groundwater was not subject to NPDES permits. ^[33] It argued the CWA intended states to control groundwater, and NPDES permits only were required where pollutants were directly discharged into a water of the United States. ^[34] Similarly, the two dissents focused on the words "from" and "addition" in the statute as limitations to CWA permitting of discharges of pollutants into groundwater, which the majority asserted would create a loophole, similar to the County's argument. ^[35] The Court found this approach would create a loophole that would allow polluters to evade NPDES permitting. ^[36] NPDES permitting is the main regulatory function in fulfilling the purpose of the CWA to regulate pollution at its source. ^[37] Congress could not have intended such an obvious loophole whereby pollutants to the nation's waters could evade the law by discharging into groundwater instead of waters of the United States. ^[38]

Resolving the split between the Fourth, Sixth, and Ninth circuits, the Supreme Court came to a different approach than any of the circuit courts in holding that the CWA requires an NPDES permit when there is direct discharge of a pollutant from a point source into navigable waters or when there is the functional equivalent of a direct discharge. ^[39] The Court outlined several non-exhaustive factors for district courts to consider in determining whether an indirect discharge is a functional equivalent of a direct discharge and thus subject to NPDES permitting. ^[40] The primary factors are time and distance: the time it takes a pollutant to reach a navigable water and...