What do you do with four million pounds of poo? If you're Hawaii, you dig really deep holes and flush it. What if it leaks into the Pacific Ocean? Then, my friend, you have a clean water act problem.
Hawaii concedes it digs holes and flushes effluent down those holes. It concedes the effluent reaches the Pacific Ocean. It admits the wells are a 'point source' under the CWA. But it argues the source doesn't directly convey the, uh, effluent into the water; it's only conveyed indirectly. And that's not without merit! The 9th Circuit held previously:
point source pollution occurs when "the pollution reaches the water through a confined, discrete conveyance," regardless of "the kind of pollution" at issue or "the activity causing it." (cleaned up)
Hawaii comes back. The CWA doesn't cover disposal into wells, by its own language. Not so, says the 9th Circuit; that's only if the wells are, in effect, self-contained.
The result seems . . . mostly reasonable, no? If your process for getting sewage gone includes dumping it into the ocean, that seems like a CWA problem. That you have some intermediary steps doesn't make the problem go away.
Now what's interesting is how closely this will be applied to fracking, and what the effects will be. It appears to be largely same/same.