Potential Loophole Threatens to Undermine Clean Water Act

By Rafael Santa Maria (PO ’20)

A pending Supreme Court case, County of Maui v. Hawaii Wildlife Fund, could determine the future of the Clean Water Act of 1972 (CWA), a federal law that regulates pollution and quality standards for surface waters in the US. In particular, a potential loophole in the CWA’s guidelines could allow public and private sector organizations to evade regulation and contaminate rivers, lakes, and oceans with impunity. 

The case began in 2012 when the Hawaii Wildlife Fund sued Maui County in federal district court over pollution created by its Lahaina Wastewater Reclamation Facility. The Fund argued that the County’s facility, which injects treated wastewater into the ground, was operating without a permit and illegally polluted the Pacific Ocean. Specifically, the Fund pointed to a CWA provision that required polluting facilities to acquire a National Pollutant Discharge Elimination System (NPDES) permit from either the state government or Environmental Protection Agency. 

Ultimately, the district court sided with the Fund and dismissed the County’s complaint that it did not receive fair notice regarding its violation of the law and subsequent civil penalties. Despite appealing the case to the Ninth Circuit Court, the County was still found liable for violating the Clean Water Act. Unsatisfied, Maui County appealed to the Supreme Court and was granted certiorari on February 19 of this year. Following this, both the County and the Fund filed briefs advocating for their respective arguments. 

In their brief, the County defended its actions, stating that:due to the nature of the Lahaina facility’s underground waste discharge system and the specific language of the CWA, it did not need to acquire a special NPDES permit. Importantly, the County highlighted that the CWA only mandated permits for facilities that have “point sources” of pollution that discharge into “navigable waters.” 

In layman’s terms, this means that the CWA only requires permits for specific pipes, ditches, or other confined waste discharge points, as opposed to “nonpoint sources” such as pollution runoff from a diffuse area – in this case, Maui County’s groundwater system. Furthermore, the County argued that the EPA’s own definition of “navigable waters” includes lakes, rivers and oceans but excludes such groundwater. Thus, because the County’s waste facility diffusely polluted a non-navigable body of water, the County maintained that it did not need an NPDES permit to operate the facility legally. 

Countering the County’s arguments, the Fund stated in their brief that in 2010 the EPA had ordered the County to secure a water quality certification, and in 2015 disclosed that the Lahaina facility required an NPDES permit. Additionally, the Fund argued that since most of the wastewater from the facility’s underground discharge wells entered the ocean in two small submarine springs, the pollution qualified as “point source” discharge. Therefore, the Fund reasoned that the facility fell neatly within the CWA’s rule requiring a permit. 

Furthermore, the Fund underscored that in the 2006 Supreme Court case Rapanos v. US, Justice Scalia concluded that any pollution to any navigable water violated the CWA. According to the Fund, this contradicted the County’s argument that they did not violate the CWA since their facility indirectly polluted the ocean through groundwater systems, as opposed to directly pumping waste into the ocean. 

Finally, the Fund expressed that whether the County’s facility required a permit and whether it directly or indirectly contributed to pollution belied its indisputable damage to the aquatic environment. Challenging claims that the Lahaina facility is relatively harmless, the Fund indicated that it injects up to five million gallons of sewage into the ocean daily. Notably, the brief indicates that the facility’s sewage discharge near Kahekili Beach devastated a once-pristine coral reef. 

Months after both parties filed their briefs, several organizations filed amicus briefs for either side. Numerous state governments and business organizations, such as the Congress of West Virginia and the Chamber of Commerce of the USA, filed briefs advocating for the County that mirrored their anti-regulatory arguments. Conversely, the Fund received support from a smaller but more diverse array of groups including former EPA administrators, scientists, and even county governments espousing the importance of CWA regulations. 

Altogether, the support that either side has received illustrates the importance of this case. And while the question of using NPDES permits in accordance with the Clean Water Act may seem too idiosyncratic to matter to everyday people, the elaborate details and case proceedings obfuscate the potentially massive environmental consequences of the Supreme Court’s final decision. 

Should the Court side with the County and accept their argument – which effectively spares indirect pollution activities from the federal regulatory scheme – public and privately owned waste management systems, factories, and other facilities would likely alter their discharge systems to avoid violating the CWA. Using this loophole in the CWA’s permit requirements, organizations could greatly undermine the Act’s environmental effectiveness. 

Considering the Supreme Court’s conservative majority, the most likely outcome is a decision in favor of the County. Assuming that one of the conservative leaning members authors the majority opinion, the Court may write that the County did not violate the CWA since groundwater is not specifically mentioned in the Act’s relevant language. 

Still, it is very unlikely that the Court will strike down the CWA or its subsections. This is due to the law’s longstanding history, and because the County never attempted to question the CWA’s constitutionality. So, while the County and their permit loophole will likely prevail in this case, the other components of the CWA will remain intact. Of course, until a decision is finally reached, there is room for at least some optimism – or at the very least, tempered pessimism.

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