Approve Cochise County's endorsement of the attached draft letter providing comments in response to the Environmental Protection Agency's ("EPA") request for comments  regarding rules changes that may be implemented in response to Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (February 1, 2018, amended and affirmed March 30, 2018), and direct the County Administrator, or a person he appoints in his discretion, to sign the letter on behalf of Cochise County.

The Board will consider endorsing the attached letter containing proposed comments to the EPA regarding rule changes that may be implemented based upon Hawaii Wildlife Fund v. County of Maui.  In the Maui case, the 9^th Circuit held that Maui County, which did not have a NPDES permit, was in violation of the Clean Water Act by virtue of its long-standing practice of disposing of effluent by injecting it into four groundwater wells.  There was no dispute that some of the injected effluent ultimately migrated out to the Pacific Ocean after injection.  The Court held that the groundwater wells were “point sources” and that the effluent, a non-permitted pollutant, was fairly traceable to a “navigable water” of the U.S.—the Pacific Ocean.  Because it was “fairly traceable,” the effluent discharge was tantamount to a direct discharge of pollutants into navigable waters.  The Court rejected the County’s defense that it was discharging the effluent into wells, and from there into groundwater, and that such conduct is exempted from the requirements of the Clean Water Act.  The Court also upheld the County’s liability for the CWA violations, finding that the Act provided fair notice that what the County was doing ran afoul of its provisions despite the well exception urged by the County and despite the fact that the State agency tasked with issuing NPDES permits had advised the County that is was still evaluating whether the wells required NPDES permits as recently as 2014.

 

Since the San Pedro River is a navigable water of the U.S., the Maui opinion, and EPA actions in response to it, have potentially significant implications for the County's recharge projects, which in some instances contemplate use of effluent.  The attached correspondence was prepared in response to the EPA's request for comments as to whether it should revise its position as to the applicability of the CWA NPDES permit program to discharges into groundwater.  Several other entities, including the Nature Conservancy and the City of Sierra Vista, may endorse the letter as well.  Comments are due by May 21, 2018, so the BOS must make a decision as to whether or not to direct County endorsement of this correspondence oby no later than Monday, May 21.

The County Attorney's Office may suggest that the BOS enter executive session to further discuss the implications of supporting the comments detailed in the attached draft letter to the EPA. 

The Cochise County Attorney's Office will work with the County Administrator, or an individual within the County that he nominates in his discretion, to coordinate signature of the letter on behalf of the County and delivery of the letter to the EPA by the May 21 deadline.

Cochise County will not be a signatory on the letter and will not have submitted any comments to the EPA on this issue.

The original should be provided to the County Attorney's Office for coordination and delivery to the EPA, and a copy retained for Cochise County's records.