This Fall, the Supreme Court will make a monumental decision on whether the Clean Water Act prohibits groundwater pollution. The upcoming case is in response to a 2018 verdict in Hawaii, which ruled that a wastewater facility needed a Clean Water Act permit to inject treated wastewater into ground wells. The ruling will have national implications about what constitutes direct water pollution with two possible and controversial outcomes: either creating a massive loophole for major polluters or drastically expanding the Clean Water Act to include infinite sources of non-direct pollution. “This is the most significant environmental law case in the last few year,” former Head of the Justice Department’s Environment Division, John Cruden, told E&E News.
First, what is groundwater?
According to the U.S. Geological Survey, ground water is water that is beneath land surface. It is water that fills pores and fractures in sand, soil and rocks. Groundwater supplies 40 percent of water used by the public and 39 percent of water used in U.S. agriculture. It also feeds into bodies of water, such as lakes, rivers and the ocean.
What is the Clean Water Act?
Since 1972, the Clean Water Act has been the main federal law governing the health of the country’s waterways. The Clean Water Act explicitly covers all navigable bodies of water. This definition has been up to judicial interpretation, but widely includes ocean, rivers, lakes, streams and wetlands, arguably including bodies of water that fill after heavy rains. The Clean Water Act channels federal funding to state and Tribal governments for water protection and remediation projects. Direct polluters are also required by the Act to obtain permits for any pollution discharged into bodies of water.
The pollution case in Hawaii
Last year, the U.S. Court of Appeals for the Ninth Circuit ruled that the Lahaina Wastewater Reclamation Facility in Maui was in violation of the Clean Water Act and needed a permit for its ongoing practice of injecting 3 to 5 million gallons of treated wastewater into the ground every day. In 2011, a U.S. Environmental Protection Agency study used tracer dye to prove that treated sewage was seeping out into coastal waters near Kahekili Beach. In 2012, a coalition of environmental advocacy organizations sued the treatment facility in order to protect nearshore coral reef. In 2018, the Court determined that because of its traceability, this case was considered direct pollution and therefore required a Clean Water Act permit.
“If the Supreme Court reverses the lower courts’ decisions, chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities would effectively have free rein to discharge pollutants indirectly into the nation’s waterways without Clean Water Act permits,” Earth Justice said in a statement reported in USA Today.
However, the County of Maui argues that this is their most environmentally friendly option given limited resources and that they would need more time and funding to explore alternate methods of disposing of wastewater, such as offshore facilities.The County believes such issues should be determined at a local level, where judges understand the constraints.
“We all want unpolluted waters, healthy coral and fish. But we want workable solutions, not onerous and costly government red tape. This is a home-rule issue that should be addressed here, not by far-off regulators imposing rules that don’t properly address our real world problems,” Maui County spokesperson Brian Perry said to the Lahaina News.
Have other courts ruled on groundwater pollution?
This is not the first time a local court has had to make a decision on indirect versus direct groundwater pollution and the Clean Water Act. In fact, USA today reports that in 2014, the U.S. Court of Appeals for the Fourth Circuit in South Carolina ruled that an oil spill from a burst pipeline was in violation of the Clean Water Act because the oil seeped through groundwater and entered bodies of water such as the Savannah River.
However, in 2018, the U.S. Court of Appeals for the Sixth Circuit in Kentucky ruled that pollutants from a coal ash pond that entered groundwater was not in violation of the Clean Water Act because groundwater does not fall under “navigable waters”.
The Supreme Court has important decisions to make both about state versus federal jurisdiction and also about the possibilities of discharging pollution into groundwater. If the Supreme Court rules against the local decision, environmentalists believe this would give polluters free reign to contaminate the country’s important water sources. If it upholds the local decision, municipalities worry they will be inundated with costly changes to infrastructure as well as open targets for lawsuits for everything from road runoff to leaky water fountains.
The Supreme Court is expected to hear the County of Maui, Hawaii versus Hawaii Wildlife Fund in October or November, 2019.
Via The Lahaina News
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