The U.S. Supreme Court's decision to review lower court rulings on whether a permit is required under the federal Clean Water Act when pollutants originate from a point source but are carried to navigable waters by a non-point source such as groundwater could set some new parameters for compliance, observers say.

The high court agreed Feb. 19 to hear the case filed by Maui County, Hawaii, in which the Ninth Circuit U.S. appellate court in San Francisco last year said the county’s discharge of pollutants into injection wells that indirectly enter the Pacific Ocean via groundwater is a violation of the law. “To hold otherwise would make a mockery" of the law's prohibitions, the court said.

In a January brief to the Supreme Court, U.S. Solicitor General Noel Francisco and the U.S. Justice Dept. said the question has the potential to affect “innumerable circumstances nationwide” and that clean-water law violators may face serious civil penalties and in some cases criminal punishment.

Justices will "resolve a simple, but important, question: whether the [National Pollution Discharge Elimination System (NPDES)] program’s reach is limited—covering only “direct” discharges—or expansive—regulating discharges conveyed through non-point sources," say attorneys at environmental and energy law firm Beveridge & Diamond PC.

Since the law was enacted in 1972, the U.S. Environmental Protection Agency has required federal pollution-discharge permits from such sources, David Henkin, attorney for the four groups that brought the suit against the county, told ENR.

Several appeals courts have agreed with the Ninth Circuit, but in late September a 2-1 split ruling by a Sixth Circuit federal appeals court panel inn Cincinnati said that if a coal ash pond is a point source for pollution reaching U.S. waters through groundwater, it does not need a permit. That panel, however, did not decide whether a coal ash pond is a point source.

“If the high court agrees with the Sixth Circuit, it will blow a hole in the Clean Water Act,” Henkin says.

Closely Watched Case

The case is being watched closely by waste dischargers and clean water advocates, says Earth Justice. “We are confident the Supreme Court will agree with the appeals court that, when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes and rivers,” says Henkin.

Hawaii Wildlife Fund, Sierra Club-Maui, Surfrider Foundation and West Maui Preservation Association sued the county in 2012 seeking to protect the island’s coral reefs from pollution that the U.S. Geological Survey determined was causing ongoing, serious harm. EPA supported the environmentalists’ position in the Maui case.

The lower federal court ruled that the county has been violating the law since the Lahaina Wastewater Reclamation Facility in Lahaina, Maui, began operating in the 1980s and was injecting 3 to 5 million gallons per day of treated sewage into wells for disposal, ordering it to obtain the discharge permit.

In 2011, EPA showed using tracer dye how sewage was flowing with groundwater into the ocean near a popular Maui beach. The sewage contains a variety of contaminants, including excess nutrients linked to algae blooms that suffocate local coral reefs, advocate Earthjustice said. At issue is whether groundwater can be a conduit to deliver point-source pollution to waters of the U.S.

Maui County does not dispute that groundwater transports sewage to the ocean but contends the point source, the injection wells in this case, must convey the pollutants directly into navigable water under the law. Since the wells discharge into groundwater—and then indirectly into the ocean—the county says it is not subject to the law's point-source requirements. 

It takes issue with need for added compliance steps, according to local newspaper Maui Now.

A group of 18 states, as well as the National League of Cities, the National Association of Counties and the National Association of Clean Water Agencies, filed a brief supporting Maui County and a high court review.

“Because the release of pollutants into groundwater is already prohibited and/or regulated in every state, there is no practical reason to extend the [point-source permitting] program beyond what Congress intended,” they contend, noting major cost and compliance impacts, especially in wastewater handling, for municipalities. 

Point Source—or Not?

The Ninth Circuit appeals court, citing language in the law, said the difference is whether pollutants can be “fairly traced” back to a point source. In this case, pollutants are traceable from a point source to navigable water and they are more than “de minimis” amounts, the court said. It also noted that the county is reading into the statute at least once critical term that does not appear in the law, that pollutants must be discharged “directly” into navigable waters from a point source.

The court added that former Supreme Court Justice Antonin Scalia, who died in 2016, in an earlier decision recognized that the law does not forbid the addition of any pollutant “directly” into navigable waters from any point source, but rather prohibits adding “any” pollutants into those waters. The county’s theory would only support liability in cases where the point source itself directly feeds into the navigable water by a pipe or a ditch, the court said.

Earthjustice did not expect the high court to take the case, noting Solicitor General Francisco's assertion in his 2019 brief that EPA was about to take action on the issue of groundwater.

Last year, the agency had solicited comments on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to [federal clean water act] regulation.”

EPA now expects to take further regulatory steps, reflecting the results of its review, within the next several weeks.

Francisco supported the high court taking the case but discouraged it from reviewing a similar case involving a Kinder Morgan Energy Partners oil pipeline spill in which it was asked to decide whether a federal permit is required for discharges into soil or groundwater whenever there is a connection between groundwater and navigable waters.

He said it would not be able to decide the “far more important question” of whether the Clean Water Act applies to indirect discharges that migrate through groundwater. The Maui petition is a better vehicle to resolve the issue because pollutants migrated to jurisdictional waters solely by groundwater connected to a point source, according to his brief.

Maui County has agreed to spend $2.5 million in infrastructure to reuse water from the Lahaina plant on golf courses and other areas that need it, Henkin said. “We met with the county for four years before [it] went to court and spent $4 million on lawyers," he said.

It is not clear when the Supreme Court will begin proceedings in the case.