Justices Grappling With Groundwater Liability In Sewage Case

Law360, November 6, 2019

By Jimmy Hoover and Juan Carlos Rodriguez

The U.S. Supreme Court on Wednesday struggled with how to prevent polluters from evading the Clean Water Act’s restrictions on surface contamination without exposing every homeowner with a septic tank to the risk of steep fines.  

The county of Maui, Hawaii, is appealing a ruling from the Ninth Circuit that it must obtain a federal permit for a sewage treatment plant that dumps millions of gallons of sewage into the groundwater beneath it each day. According to environmental groups, much of the sewage ends up in the Pacific Ocean, where it is wreaking havoc on a coral reef’s ecosystem.

The CWA requires federal permits for “any addition of any pollutant to navigable waters from any point source.” With support from the Trump administration, Maui County says the CWA’s permitting requirement doesn’t apply because it only covers pollution that is dumped directly into navigable waters like the Pacific Ocean, not “nonpoint sources” like groundwater.

At a lively oral argument Wednesday morning, the liberal justices feared that adopting Maui County’s interpretation of the CWA would allow major polluters to evade permitting requirements by, for instance, burying their pipes in the ground right next to navigable waters.

“What we have, as I take it, is a road map for people who want to avoid the point source regulation,” Justice Stephen Breyer said during an exchange with Maui County’s attorney, Elbert Lin of Hunton Andrews Kurth LLP. “You understand the problem. What I’m looking for is what’s the standard that prevents evasion.”

At the same time, the justices searched for a “limiting principle” to the position of the Hawaii Wildlife Fund and other environmental groups that filed a citizen’s suit under the CWA to force Maui County to obtain a federal permit for the Lahaina Wastewater Reclamation Facility.

In other words, it was unclear how far the point source has to be from the navigable water before the permitting requirements no longer applies. Justice Samuel Alito asked if homeowners would suddenly be liable for the CWA’s $50,000-per-day penalties if their faulty septic tanks leaked pollution that made its way into a navigable water.

Justice Breyer seized on that point. “I learned in the eighth grade, and I might be wrong, that water runs downhill,” he said. “I am worried about 500 million people suddenly discovering that they have to go and apply for a permit from the EPA.”

Attorneys for both sides tried to use relatively simple analogies to drive their points home. If someone pours whiskey from a bottle into a flask and then into a punch bowl later at a party, it’s “ordinary parlance” to say that the whiskey in the punch came from the flask, not the bottle, said Deputy Solicitor General Malcolm Stewart on behalf of the Trump administration, which is supporting the county in the case.

“When you buy groceries, you say they came from the store, not from the car, even though that’s the last place they were before your house,” countered David Henkin of Earthjustice.

Lin told the justices it’s important to reverse the Ninth Circuit’s decision because there are 7,000 cesspools within 750 feet of the ocean in Hawaii, and that a broad interpretation of the CWA’s requirements, like the one environmental groups are embracing, could cause a great deal of uncertainty about what those landowners are supposed to do.

Henkin said that not all of those people would automatically have to get permits because the Ninth Circuit said the permitting agency would have to show that pollution was specifically traceable through groundwater to a source, and that the pollution’s entrance into navigable waters was foreseeable.

In the weeks leading up to oral arguments, there was some confusion about whether they would even happen, because the Maui County Council in September voted 5-4 to settle the lawsuit. That set off a still-unresolved power struggle between the council and Maui Mayor Michael Victorino, who says he’s the only one with the authority to finalize any settlement.

Council Chair Kelly King wrote to the Supreme Court clerk advising him of the council’s vote, but Moana Lutey, representing the county, responded with a letter of her own asserting there is no final settlement. King did not respond to a request for comment Wednesday about what the council majority may wish to do in light of the mayor’s position, but it’s still possible the lawsuit could be settled before the justices decide the matter.

Environmentalists sued the county in 2012, saying it violated the CWA by not obtaining a National Pollution Discharge Elimination System permit for sewage wastewater injection wells that discharged pollution into the Pacific Ocean via groundwater.

The Ninth Circuit in 2018 upheld a lower court ruling that an NPDES permit was required, a decision the county asked the justices to review.

Elbert Lin of Hunton Andrews Kurth LLP argued for the County of Maui, with support from Deputy Solicitor General Malcolm Stewart.

David Henkin of Earthjustice argued for the environmental groups.

The case is County of Maui v. Hawaii Wildlife Fund et al., case number 18-260, in the U.S. Supreme Court.

–Editing by Alanna Weissman.

Update: This story has been updated with additional information.

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