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June 2020 – The Clean Water Act’s Trials and Tribulations

The Clean Water Act’s Trials and Tribulations

The U.S. Supreme Court recently heard arguments on whether discharges to groundwater may be subject to Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit system. In the lawsuit County of Maui v. Hawaii Wildlife Fund, the environmental organization challenged the County of Maui’s practice of discharging sewage treatment plant effluent into four wells within a half mile from the Pacific Ocean. 

In this matter, the court ruled in favor of the plaintiffs, finding that the discharge to groundwater was “functionally one into navigable water.” On appeal, the Ninth Circuit affirmed the ruling on the grounds that the pollutants were, “fairly traceable from the point source to a navigable water.”

The Court rejected the “fairly traceable” test applied by the Ninth Circuit, finding that such a standard was too broad and could include discharges that Congress intended to be left to the states to regulate. The Court also rejected the position put forward by Maui County and US EPA that discharges to groundwater are categorically excluded from the CWA. 

The Court, however, did leave open the possibility that future trial courts may find other factors that are significant to this determination in individual cases, and US EPA may be able to provide further clarification through administrative guidance. This open-endedness leaves interesting questions on how this decision will be applied to other cases and may have implications for a variety of sites including coal ash disposal sites, cement kiln dust disposal sites and per- and polyfluoroalkyl substances (PFAS) sites. 

The Court’s decision on Maui v. Hawaii Wildlife Fund can be found HERE.

Gary Yakub