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Supreme Court says Clean Water Act applies to some groundwater pollution

Posted at 10:26 AM, Apr 23, 2020

The Supreme Court on Thursdayruledthat the Clean Water Act requires the federal government to regulate some groundwater pollutants that find their way into navigable waters such as oceans, rivers and streams.

The 6-3 opinionpenned by Justice Stephen Breyer is a middle ground position that rejects the Trump administration's push for lesser regulation, but wipes away a lower court ruling which would have required more permits under the law.

"It makes clear that the Clean Water Act requires a permit for at least some, and potentially a lot of, groundwater pollution," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

The case centered on a once-pristine reef in Maui, Hawaii, that environmental groups say has been devastated by pollutants from a wastewater reclamation facility.

At oral arguments, several of the justices were sympathetic to environmental concerns, but also seemed concerned with the breadth of a lower court opinion that could force large counties and even single family homeowners to acquire expensive and burdensome permits under the law.

The law requires those who discharge pollutants into navigable waters from pipes or wells to obtain a federal permit. But the question presented here was whether such permits are also required for pollution that travels some distance from the pipe or well through groundwater and makes its way into navigable water.

The County of Maui owns and operates four wells at the Lahaina Wastewater Reclamation Facility, the principal wastewater treatment plant for West Maui. The wells receive approximately 4 million gallons of sewage per day from a collection system that serves about 40,000 people. The sewage is treated and either sold for irrigation purposes or injected into the wells for disposal. Some of the treated wastewater in the wells eventually reaches the ocean.

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined Breyer in the majority. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

"Compared to the argument that it does not require permits for any groundwater pollution, which the county and the three dissenting justices all argued, this result will both empower the federal government to more aggressively regulate such pollution and allow private parties to sue when that regulation fails," Vladeck said.

After a challenge from environmental groups, the 9th US Circuit Court of Appeals held that the county violated the Clean Water Act because it hadn't obtained proper permits. The court said that the law applied to pollutants from the well that had made its way to the ocean via groundwater.

Elbert Lin, a lawyer for the county, told the justices that the opinion was so broad it would force the county and its taxpayers to face massive liability and fines. A permit, Lin argued, may be required for pollutants that travel through a well or pipe into the Pacific Ocean, but a permit should not be required for pollutants that travel through groundwater and end up in the ocean.

David L. Henkin, a lawyer for the group Earthjustice representing environmental groups pressed for the need for permits.

"In the decades since the Lahaina Facility opened," Henkin argued, "nutrients and other pollutants from injected sewage have devastated" the reefs.


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