Big news on the Clean Water Act (CWA). With the backdrop of a major circuit split (previously discussed here), the U.S. Supreme Court has agreed to hear the Ninth Circuit case of County of Maui, Hawaii v. Hawaii Wildlife Fund. The Supreme Court will now have to determine whether discharges of pollutants to surface waters via groundwater are regulated under the CWA.
In County of Maui, plaintiff-environmentalists alleged that the wastewater from a municipal wastewater treatment facility was seeping through the groundwater and ending up in the Pacific Ocean, in direct contravention of the CWA, which regulates pollution from “point sources” into federally protected navigable waters. In finding for the plaintiffs, the Ninth Circuit espoused the ‘conduit’ theory and held that if there is a “direct hydrological connection” between the point source and navigable water, the CWA regulates it, and a permit under the statute is required.
In late 2018, the Sixth Circuit diverged from the Ninth and held that for the CWA to apply, the pollutants must be directly discharged into the federal navigable water.
Following the Ninth Circuit’s decision, outcry from government bodies, businesses, and industries ensued, who have claimed that the Ninth Circuit’s broad interpretation of the CWA effectively allows the statute to regulate all water – not just federally protected navigable water – if there is a chance that a pollutant can enter navigable water through groundwater in any way at any time. It could mean significant upheaval for certain economic activities currently outside the CWA’s reach, such as coal ash from coal plants, pipeline spills, and agricultural runoff.
Those who support a narrower interpretation of the CWA also point out that groundwater would still be protected under other federal laws and state regulations. However, an argument may be made that there is too much inconsistency in state laws governing groundwater for them to be effective.
Meanwhile, environmentalists will attempt to preserve the Ninth Circuit’s ruling and may use an unlikely source– the late conservative Justice Scalia’s opinion from the 2006 case of Rapanos v. United States in which he stated that a discharge into navigable waters does not have to be direct to be covered under the statute.
Ultimately, the EPA may tip the scale. Under the prior administration, EPA had submitted an amicus brief in the County of Maui case stating that it had long considered pollution via groundwater to be subject to the CWA as long as a direct hydrological connection existed. The EPA is currently revisiting this interpretation. If it reverses its prior position with a well-reasoned rationale, it may help persuade the Supreme Court.
Whatever the high court’s ultimate determination, it will have far-reaching impacts on the regulated industry and permitting and enforcement issues under the CWA.