On November 6, the U.S. Supreme Court will hear arguments in a Clean Water Act case with major implications for the business community. At stake in County of Maui v. Hawaii Wildlife Fund is whether the Clean Water Act permitting program will be expanded to cover many kinds of commercial, industrial and public works activities that don’t directly discharge pollutants into surface waters but do so indirectly through ground water systems that carry those pollutants to surface waters.
In February 2018, the U.S. Ninth Circuit in the Maui case interpreted the CWA term “discharge of a pollutant” from a “point source” into “waters of the United States” as covering discharges from the County’s waste treatment wells that travelled through groundwater to the Pacific Ocean where tracer dye tests linked the discharges to pollution levels in the Ocean.
But in September 2018, the U.S. Sixth Circuit issued a contrary ruling in Kentucky Waterways Alliance, setting up a split in Circuits and sending the issue to the Supreme Court. In this case, the County, supported by the U.S. Environmental Protection Agency and briefs from a broad range of business and public agencies, argued that the Clean Water Act only covered discharges that directly “deliver” pollutants to surface waters from point sources such as outfalls.
They argued that upholding the Ninth Circuit’s Maui decision would result in many more sources such as septic systems and coal ash ponds needing discharge permits. They also argued that upholding the Ninth’s circuit’s view would upset the traditional federal-state “balance” under the Clean Water Act.
The Wildlife Fund, supported by other environmental groups and three former EPA Administrators, argues that the Clean Water Act regulates such indirect discharges to achieve its broad water protection goals. The Administrators argue that EPA has historically interpreted the Act as covering such indirect discharges and that the EPA’s recent “reinterpretation” excluding such discharges should not be given deference by the Court.
The Ninth Circuit relied on the late Justice Antonin Scalia’s Rapanos interpretation holding that the Clean Water Act’s language does not require that discharges into waters of the U.S. be “direct.” The Court’s conservatives may be torn between supporting the views of the regulated community and following Scalia’s “literal” interpretation.
The outcome of the case will have major implications for mining, development, energy, water treatment and other industries. A decision is expected before next summer. Stay tuned.
Larry Liebesman, Esq. Senior Advisor
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).