Feb 20, 2019

Supreme Court Agrees to Hear Clean Water Act Case

The case seeks to determine if groundwater contamination that leaks into navigable waters violates the rule

Supreme Court to hear Clean Water Act case regarding groundwater contamination
Supreme Court to hear Clean Water Act case regarding groundwater contamination

On Feb. 19, the U.S. Supreme Court agreed to hear a case regarding if groundwater contamination that leaks into navigable waters violates the Clean Water Act. In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that Hawaii’s Maui County violated the Clean Water Act by injecting treated sewage from a wastewater treatment plant into groundwater which entered the Pacific Ocean. That same case will now be heard by the Supreme Court.

In the case, Maui County operates four wells at the Lahaina Wastewater Reclamation Facility, the wastewater treatment plant for West Maui. According to CNN, the wells receive approximately 4 million gal of sewage per day from a collection system that serves approximately 40,000 people. The county treats the wastewater and then either sells it for irrigation purposes or injects it into the wells, some of which eventually reaches the Pacific Ocean. The county is arguing that the lower court incorrectly expanded the reach of Clean Water Act.

“Although this case raises a technical question about the Clean Water Act, it has much broader implications for the scope of the U.S. EPA’s power to regulate pollutants that cannot be traced to a specific source," said Steve Vladeck, a CNN contributor and professor at the University of Texas School of Law. “The justices had sidestepped that matter five years ago, but now seem poised to revisit, and perhaps rein in, the federal government's authority in such cases–a ruling that could have major consequences for the scope of the EPA's jurisdiction

While the Clean Water Act specifically prohibits dumping pollutants into navigable bodies of water, such as rivers, lakes and oceans, the act is less specific regarding indirect sources. In 2018, a similar case was heard by the U.S. Court of Appeals for the Fourth Circuit regarding an underground pipeline that burst South Carolina in 2014, ultimately contaminating nearby river, lakes and wetlands, according to USA Today.

In contrast, the U.S. Court of Appeals for the Sixth Circuit took a different view in a Kentucky case where pollutants from coal ash retention ponds penetrated groundwater and a local waterway. In that case, the court found that only pollutants added directly to navigable bodies of water are regulated.

The Supreme Court’s announcement to take on a Clean Water Act case comes on the heels of the EPA’s proposal to revise the Water of the U.S. rule, or WOTUS.

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