Los Angeles Times, November 6, 2019
By DAVID G. SAVAGE | STAFF WRITER
WASHINGTON — Supreme Court justices, both conservative and liberal, appeared skeptical Wednesday of a Trump administration argument that the federal Clean Water Act should not apply to sewage plant wastewater that flows into the ground and eventually seeps into federally protected waters, such as rivers or oceans. The case from Hawaii has emerged as a major test of the federal anti-pollution law’s scope even as the Environmental Protection Agency under President Trump cuts back on enforcement. If justices side with environmentalists, their ruling could extend federal regulation to water treatment plants across the country.
The law makes it illegal to discharge pollutants “from any point source” that flows into the “waters of the United States.” However, lawyers for the Justice Department and Maui County in Hawaii argued that pollution that flows from a treatment plant through the ground and into the ocean is not covered by the law.
The EPA maintains “that groundwater will break the causal chain,” Deputy Solicitor Gen. Malcolm L. Stewart told the justices.
“Any little bit of groundwater is enough?” asked Chief Justice John G. Roberts Jr.
Yes, Stewart said.
“So 2 inches? Roberts asked.
“Two inches,” Stewart replied.
Justices Elena Kagan and Stephen G. Breyer said that if that view were adopted, it would allow polluters to run pipes that stop 25 feet short of a river or bay. It would give “an absolute road map” for how to break the law while spewing pollution into protected waters, Breyer said.
The federal law requires potential polluters to obtain a permit before discharging contaminated water, and it imposes fines and penalties on those who violate it. The Justice Department lawyer argued that states and municipalities can regulate their groundwater, but federal protection should not extend to water in the soil. “It’s not intended as a cure-all,” he said.
“Well, that’s true, Mr. Stewart,” Kagan said, “and nobody’s saying the federal government can start regulating groundwater as groundwater. But here, the question is [whether] the pollution is coming from an undisputed point source and going into the navigable waters.”
But the justices struggled over how to prevent the stricter permitting rules required under the Clean Water Act from applying to homeowners with a leaky septic tank. Justice Samuel A. Alito Jr. and the chief justice said they were troubled by the idea of extending federal regulation to cover situations where a trace amount of pollution may be found in a river or bay.
As the argument wrapped up, the justices looked to be searching for a middle-ground position that would restrict large-scale pollution flowing through groundwater while preventing lawsuits over distant and trace pollutants.
The case arose when environmentalists sued Maui County for discharging about 4 million gallons a day of treated wastewater into the ground, alleging that some of it was flowing underground into the Pacific Ocean.
They won before a federal judge and the 9th Circuit Court of Appeals in San Francisco, which held that the pollution was subject to federal control because it was the “functional equivalent of a discharge into the navigable water.”
“At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly,” Judge D.W. Nelson wrote for the 9th Circuit. “The county could not under the Clean Water Act build an ocean outfall to dispose of pollutants directly into the Pacific Ocean. … [It] would make a mockery” of the law if the county could do the same indirectly by sending pollutants through the ground.
Lawyers for the county appealed to the Supreme Court. They said the 9th Circuit’s “novel reading” of a more than 40-year-old law could expose “states, localities, tribes and millions of property owners to new liability and the prospect of crippling fines.” They cited EPA data that there are more than 650,000 wells that could be potentially covered.
The appeal had the backing of the Assn. of California Water Agencies, whose lawyers called the 9th Circuit’s ruling a “radical expansion” of federal authority.
The EPA had supported the suit brought by environmentalists when it was in the lower courts. But the Trump administration switched sides and urged the court to rule for the county. In May, the Justice Department filed a brief urging the court to rule that the federal law “protects only surface waters and does not regulate releases of pollutants to groundwater.”
In the last decade, the justices have been split over how far the federal government can go to regulate water inside the United States, whether it be wetlands, or, as in this case, groundwater. The court’s conservatives have argued the federal government can regulate only polluted water that flows into a river, bay or the ocean.
But environmentalists as well as the court’s liberal justices have said this authority can extend farther inland to prevent pollution draining off fields and eventually flowing to streams, rivers and bays.
A ruling in the case, County of Maui vs. Hawaii Wildlife Fund, is expected next year.