By Katlyn Schmitt, Center for Progressive Reform
In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a “point source” and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform’s May 28 clean water webinar examined the Supreme Court’s opinion and its possible implications for water quality protections.
The Clean Water Act prevents the addition of any pollutant to any navigable water of the United States from any so-called “point source” – a fixed point, as in, for example, the end of a pipe discharging into a river – without a National Pollutant Discharge Elimination System (NPDES) permit. Generally speaking, the EPA is on the hook to regulate such point-source pollutants, and states are generally responsible for regulating discharges from nonpoint sources. But what about discharges from point sources into non-navigable waters, like groundwater, that ultimately flow into navigable waters, like the Pacific Ocean?
That is exactly what County of Maui, Hawaii v. Hawaii Wildlife Fund set out to answer. In this case, the County of Maui had used four injection wells, located about a half a mile from the Pacific Ocean, to dump roughly 4 million gallons of treated sewage a day into groundwater (see image above). The treated sewage ultimately made its way into the ocean and was wreaking havoc on nearby water quality and coral reefs (see image below).
In a 6-3 opinion written by Justice Stephen Breyer, the Court held that a NPDES permit is required when “there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge” – or, “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly the same means.”
As discussed on the May 28 webinar, the Hawaiian environmentalists who originally brought this case waged a 12-year battle in court to ensure that sewage discharged into the Pacific Ocean was subject to a NPDES permit. While the case was remanded back to the lower courts, the ruling was considered a big win for ensuring a more scientific approach to the Clean Water Act’s coverage and confirming that industry or state and local governments can’t circumvent the law by pumping pollution into groundwater before it’s discharged into surface waters.
The webinar, which featured Hannah Bernard of the Hawaii Wildlife Fund; David Henkin of Earthjustice; and CPR Member Scholars Amanda Leiter, Steph Tai, and Rob Verchick, also touched on the legal and policy issues at stake in the case and what the decision might mean for the future of Clean Water Act regulation, permitting, and litigation.
You can watch a recording of the webinar below or on our YouTube channel.