Clean Water Act in the Balance?

Marine biologist Hannah Bernard has observed the slow decline of a shallow reef off Maui’s Kahekili Beach Park for 3 decades. Bernard, executive director and cofounder of the Hawaii Wildlife Fund, remembered how much more pristine the reef was 28 years ago when she moved to Hawaii. There were more species of fish and a higher percentage of coral cover than now, she recalled.

Bernard and others say that nutrients and other pollutants from Maui County’s Lahaina Wastewater Reclamation Facility have devastated the reef. They say the county is skirting the federal Clean Water Act (CWA) by disposing of treated sewage into groundwater beneath the reclamation facility, located about a kilometer from the shoreline of the Pacific Ocean, a navigable water of the United States. Every day, about 1–2 billion liters (3 to 5 million gallons) of wastewater from the facility’s four injection wells seep into groundwater before entering the Pacific Ocean and encountering the reef.

Critics, including Bernard, claim that the county, which has not obtained a permit under CWA’s National Pollutant Discharge Elimination System (NPDES) permit program, is looking for a loophole because the sewage seeps into the ocean through groundwater rather than directly from the facility’s injection wells, which are considered by the CWA as point sources of pollution. The CWA “made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained,” a U.S. Environmental Protection Agency (EPA) summary of the act notes.

Now the Supreme Court is deliberating a case, County of Maui, Hawaii v. Hawaii Wildlife Fund, that centers to a large extent on whether the pollution comes “from” the injection wells or “from” the groundwater. The court heard arguments on what is sometimes called the Lahaina case on 6 November.

The outcome of the case could have major ramifications on the interpretation of the Clean Water Act. “There couldn’t be a more important case in front of our nation and in front of our Supreme Court with regard to the environment yet to be evaluated, to my knowledge,” said Bernard.

A Road Map for Avoiding Point Source Regulation?

“The issue in the case is whether polluters can circumvent the regulation of the pollution of our nation’s oceans, rivers and lakes, and streams, everything, simply by creating discharges that go via groundwater rather than directly into the surface waters,” said David Henkin, a staff attorney in the Mid-Pacific Regional Office of EarthJustice, a nonprofit public interest environmental law organization. Henkin argued the case for the plaintiffs—the Hawaii Wildlife Fund and other environmental groups—before the Supreme Court.

Maui County “intentionally designed the facility to dispose of millions of gallons of pollution every day by using the groundwater rather than a pipe going directly into the ocean,” Henkin said. “The question the court is grappling with in the case is whether the Clean Water Act creates a type of massive loophole.”

During the Supreme Court’s oral arguments, Justice Stephen Breyer wondered if the case’s outcome could create “an absolute road map for people who want to avoid the point source regulation” simply by allowing pipes to stop just before the flow from the pipes goes directly into a navigable water.

The question of whether and how the Clean Water Act may regulate groundwater is hotly contested. A bipartisan group of three former EPA administrators who served under Democratic and Republican administrations focused on groundwater when filing an amicus brief in support of the Hawaii Wildlife Fund.

“In particular, amici share the view that the CWA charges EPA with protecting the navigable waters of the United States from pollutants discharged from point sources that travel to surface waters through groundwater,” the brief states. “For decades, EPA has consistently articulated that view—and has regulated consistent with that view, including by issuing permits under the National Pollutant Discharge Elimination System (NPDES) program for point-source discharges to surface waters through hydrologically connected groundwater.”

Last April, however, the EPA under the administration of President Donald Trump issued an interpretative statement “clarifying” the application of CWA permitting requirements to groundwater. “EPA concluded that releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities,” the fact sheet states.

The county argues that the injection wells already are regulated, including through CWA’s nonpoint source program, and that the wells do not require an NPDES permit. During the court’s oral arguments, lawyer Elbert Lin argued for the county that an NPDES permit is required “only when a point source or series of point sources is the means of delivering pollutants to navigable waters.”

“What does that mean?” asked Chief Justice John Roberts during oral arguments. “That if [the point source] ever runs into groundwater, it is not the means of conveyance but the groundwater is?”

Lin responded, “That’s correct.”

Lin also argued that an expansion of the point source program would place more water and water pollution under federal instead of state authority. “This expansion of the point source program and diminution of the nonpoint source program is not warranted by the text,” he told the court.

Henkin recently told Eos, however, that the county’s argument about an expansion of the point source program that could require “everybody and their brother” to get a permit is “alarmist rhetoric.”

The Waters of the United States

Disputes about how to protect the nation’s waters and what waters require what protections are happening elsewhere on federal and state levels as well. On 23 January, for instance, the Trump administration released its new Navigable Waters Protection Rule, which includes a redefinition of “waters of the United States” (WOTUS), replacing the Obama administration’s Clean Water Rule and its WOTUS definition.

EPA administrator Andrew Wheeler said the new definition provides “much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects.” However, an EPA Science Advisory Board draft commentary, signed by board chair Michael Honeycutt and posted online in advance of the new announcement, states that the then proposed ruling “decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.”

Henkin said that “the Trump administration’s rollback on WOTUS does not affect the Lahaina case, which involves discharges into the Pacific Ocean. Even the Trump administration recognizes that the ocean is a WOTUS.”

“The rulemaking process is part of the executive branch, whereas SCOTUS decisions are the judicial. The new rule should not preclude the court from making a decision in the Maui case,” noted Adam Ward, an associate professor at the O’Neill School of Public and Environmental Affairs at Indiana University, Bloomington. Ward, who is not a party to the case, is a science adviser to Eos representing AGU’s Hydrology section.

“The rule explicitly excludes discharges to groundwater from regulation, whereas SCOTUS may conclude that these connections justify regulation of pollutant discharges to groundwater. However, because these are separate branches of government, the rule does not automatically nullify any decision from SCOTUS, nor does it necessarily agree with the SCOTUS decision. Instead, this highlights the current challenge of determining which waters are regulatory in a time of changing regulations from the EPA and pending SCOTUS decisions,” Ward added.

Drawing Boundaries Around a Continuous Cycle

For scientists, the current Supreme Court case is frustrating because they say that the science is so clear. “What’s really stunning for me is the willingness of our county to disregard scientific evidence that we are impacting a coral reef,” said Bernard. She added that EPA’s recent interpretative statement about CWA permitting requirements with regard to groundwater “is another example of the great folly of an administration that doesn’t use science, or that actually denies science, in terms of how policies are shaped to do business for the health of future generations.”

Ward said that the Lahaina case is the latest in a series of Supreme Court cases over the past 50 years that “work their way in reverse through the hydrological cycle from where we started—navigable waters—to the portions of the landscape that contribute to the health of those waters.” The Lahaina case, he said, “is one of the first major tests saying ‘what about the groundwater?’”

“The regulations are essentially trying to draw boundaries on the water cycle, which is, of course, a continuous cycle,” Ward added. “I hope that the Supreme Court strikes a balance between a continuous cycle where all waters are connected and our understanding that some waters are more connected than others.”

“This court case is a step toward clarification [that] should lead towards regulations that are, one, based on the best available science, and two, efficient to be implemented,” he said.

“This [case] has been so frustrating to the scientific community,” said Mark Rains, professor of geology and director of the School of Geosciences at the University of South Florida, Tampa. “From a scientific standpoint, it doesn’t make any sense at all to separate surface water from groundwater.” He added, though, that “policy can’t be a slave to the science.”

Rains is an amicus curiae on a Supreme Court brief on the Lahaina case, filed for aquatic scientists and scientific societies in support of the plaintiffs. The brief “highlights the important scientific reality of the connections between point sources and surface waters via different types of groundwater pathways, as well as the scientific tools used to ascertain those connections.”

Rains said that surface water and groundwater are largely treated separately under federal rules and regulations. This case “could rip a great big hole in that firewall between the two by creating case precedent that says that pollutants can, in fact, travel from a point source in the subsurface and later discharge to waters of the U.S. and that would still trigger a Clean Water Act violation,” he said. The case “has the capacity to resonate quite loudly, depending on the outcome, because it could open up all kinds of new avenues for the application of the Clean Water Act if the plaintiffs prevail.”

Holding Polluters Accountable?

“If they [the Supreme Court] rule the way I hope, then the Clean Water Act will continue to be an effective tool to hold polluters like the county accountable and to make sure that if they are going to continue to discharge to the waters of the United States that they do so in a manner that is not going to degrade water quality and harm public interest,” Henkin said.

If the court rules in favor of the county, “one could expect to see more and more polluting industries cutting their pipes off short of the water’s edge, giving up the Clean Water Act permits or not applying for new ones, and doing whatever they want,” Henkin said. He added that the results would be “substantial degradation of our nation’s waters and a huge reversal of the progress that we have made over many decades.”

Henkin said that the case is not good for the image of Maui County. “The county is at the tip of the spear trying to gut the Clean Water Act,” he said.

Ward said that this case “about sewage in what might be, at least in our minds, one of the most beautiful and unique ecosystems in the United States highlights the challenge of how we manage our impact on the environment.”

“I would underscore, though, that the exact same challenge of balancing human use and ecosystem impact is not unique to the Maui case,” he said. “This plays out everywhere that humans live on the planet.”

—Randy Showstack (@RandyShowstack), Staff Writer

Citation:

Showstack, R. (2020), Clean Water Act in the balance?, Eos, 101, https://doi.org/10.1029/2020EO139384. Published on 27 January 2020.

Text © 2020. AGU. CC BY-NC-ND 3.0
Except where otherwise noted, images are subject to copyright. Any reuse without express permission from the copyright owner is prohibited.

Text © 2020. AGU. CC BY-NC-ND 3.0
Except where otherwise noted, images are subject to copyright. Any reuse without express permission from the copyright owner is prohibited.