By Paul J. Sniadecki, MLSA Board Director (NOTE: Portions of this article first appeared in the USA TODAY)
The Supreme Court (SCOTUS) has agreed to decide if contamination of groundwater that seeps into rivers, lakes and oceans violates the Clean Water Act (CWA).
Dumping pollutants directly into “navigable bodies of water” is prohibited by the 47-year-old law, but it is less clear about indirect sources.
Last year, the U.S. Court of Appeals for the 9th Circuit ruled that Hawaii’s Maui County violated the law by injecting treated sewage from a wastewater treatment plant into the groundwater, some of which enters the Pacific Ocean. The high court will hear the county’s appeal next fall.
If the Supreme Court reverses the lower courts’ decisions, chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities would effectively have free rein to discharge pollutants indirectly into the Waters of the United States (WOTUS) without Clean Water Act permits.
The U.S. Court of Appeals for the 4th Circuit came to a similar conclusion last year in a South Carolina case involving an underground pipeline that burst in 2014, spilling hundreds of thousands of gallons of gasoline. Some of the fuel seeped into nearby rivers, lakes, and wetlands, including the Savannah River.
However, the U.S. Court of Appeals for the 6th Circuit did not take the same view in a Kentucky case, in which pollutants from coal ash retention ponds seeped into groundwater that fed local waterways. The court said only pollutants added directly to navigable bodies of water were regulated under the law.
The SCOTUS move to hear the case comes about two months after the current USA administration announced it was rolling back regulation that has become a rallying cry for farmers and property-rights activists opposed to federal overreach. The new proposal would ease Washington’s oversight of small bodies of water, known as the WOTUS rule that expanded federal protections to smaller rivers and streams.