Feb 20, 2019

Supreme Court to Hear Groundwater Pollution Case

A case on how to regulate groundwater pollution will be heard by the Supreme Court

A case on how to regulate groundwater pollution will be heard by the Supreme Court
A case on how to regulate groundwater pollution will be heard by the Supreme Court.

Supreme Court Justices agreed to hear a case over how to regulate groundwater pollution on Feb. 19, 2019.

According to the Water Environment Federation (WEF), the case is Cty. of Maui v. Hawaii Wildlife Fund, U.S., No. 18-260. The outcome of this case could change the way factories, pipelines, and others discharge their effluent and could change the way sewer systems, power plants and other industries dispose of their wastewater. 

On Aug. 27, Maui County, Hawaii, filed a writ of certiorari seeking for Supreme Court consideration of the Maui County case that started with a lawsuit in 2012. According to WEF, Maui County is asking the Supreme Court to reverse an appeals court ruling that found the county is liable for discharging treated wastewater underground because it eventually seeped into the Pacific Ocean.  

The Clean Water Act (CWA) states that it does not apply to pollution that has been injected into groundwater. According to WEF, the issue becomes less clear if groundwater then seeps into a body of water that the law does apply to, such as a river, ocean or lake.

Another case, the Kinder Morgan Energy Parters LP v. Upstate Forever is also a case that raises questions about the scope of the CWA. 

"These two cases significantly expand EPA's decades-long understanding that a Clean Water Act permit is only required when a discharge is into groundwater that has a direct hydrologic connection to a surface water," said Kevin Minoli, Alston & Bird Environment, Land Use & Natural Resources partner and former senior official in the Environmental Protection Agency’s Office of General Counsel. "By holding that permits are required whenever any amount of the discharge reaches the surface water in any way and at any point in time, the two decisions have unearthed incredible uncertainty for those who are trying to understand and comply with the law.”

The Supreme Court justices will now have an opportunity to settle a long unresolved question in the area of water law: Can businesses freely dispose of pollution into a groundwater source if that pollution eventually flows into a body of water on the surface?

According to WEF, businesses and municipalities are now arguing that CWA’s pollution limits were never meant to apply to groundwater. However, environmentalists say that is not the case if it can be proven that a groundwater source is connected to a river, lake or ocean.

If the Supreme Court ultimately sides with environmentalists, it could be a big change for industries that produce lots of effluent, such as coal-fired power plants or municipal sewage treatment operations. According to WEF, they may no longer be able to dispose of that effluent underground, or even in ponds that seep underground, and they may have to find more expensive ways to manage their wastewater.

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