By Lisa Soronen
If a state or local government discharges a pollutant from a point source to a navigable water, it must obtain a permit under the Clean Water Act (CWA).
But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water?
Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund.
Maui County injects treated wastewater from wells into the groundwater. Some of the treated wastewater reaches the Pacific Ocean. The Hawaii Wildlife Fund sued the county, arguing it was required to obtain a permit under the CWA for these discharges. Wells are point sources and the Pacific Ocean is a navigable water.
But the treated wastewater in this case doesn’t go directly from the well to the ocean. It is conveyed through groundwater. The Ninth Circuit assumed without deciding groundwater isn’t a point source or navigable waters.
The Ninth Circuit held that the CWA requires Maui to get a permit in this case, concluding that the discharges are point source discharges because “nonpoint source pollution” excludes, for example, roadway runoff that isn’t “collected, channeled, and discharged through a point source.” Here, the pollutants are collected in wells.
According to the lower court, they are also “fairly traceable” from the point source to the navigable water and reach the navigable water at “more than de minimis levels.”
A certiorari stage amicus brief joined by the National Association of Counties, the National League of Cities, the International Municipal Lawyers Association and others, argues that if the Supreme Court adopts the Ninth Circuit’s approach in this case, numerous wastewater, stormwater, and water supply infrastructure nationwide will be required to obtain CWA permits, which will be difficult and expensive.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor on judicial issues to the NCSL Blog.