Imagine a scenario where the groundwater under your farm could be regulated by the EPA through the Clean Water Act, subjecting your operation to new permit requirements and potentially new citizen lawsuits if the groundwater becomes polluted.
That scenario could become reality depending on how the U.S. Supreme Court rules, sometime next year, on a case that could determine the future of groundwater in the federal permitting scheme known as the National Pollution Discharge Elimination System, or NPDES.
Groundwater currently is regulated at the state level and is not considered to be a pollution point source.
But what if pollution finds its way to navigable waters via groundwater?
Attorneys for both sides in the case County of Maui, Hawaii, v. Hawaii Wildlife Fund, presented oral arguments to the Supreme Court on Nov. 6.
Scott Yager, environmental counsel for the National Cattlemen’s Beef Association, told DTN it is a case farmers need to watch.
“The Maui case is important to farmers and ranchers because a bad decision at the Supreme Court would mean federal Clean Water Act liability for any nutrients or pesticides that get into the groundwater and migrate to a WOTUS (waters of the United States),” he said.
“This would be a major ‘moving the goal posts’ for producers who would have to obtain NPDES permits for routine agricultural activities that have historically been protected from the Clean Water Act.”
On Feb. 1, 2018, the U.S. Court of Appeals for the Ninth Circuit sided with a district court in its ruling that the County of Maui violated the Clean Water Act when it discharged pollutants from its wells into the Pacific Ocean.
During oral arguments before the Supreme Court, justices pressed attorneys for clarification on how the federal government would fairly regulate groundwater.
That is, if a pollutant finds its way to groundwater and then to a navigable water, does groundwater then become a pollution point source?
“This is a complicated issue, and oral arguments revealed the justices are divided on how to resolve, so they will need time to figure it out,” Yager said. “Therefore, I don’t expect to see a decision issued until the end of the Supreme Court term in June 2020.”
The NCBA filed an amicus brief with the court along with other agricultural groups, advocating for the court to craft a decision that doesn’t create additional liability for producers and protects statutory exemptions for agriculture.
“As much as I hate to envision a bad decision from the Supreme Court, what it would mean for farmers and ranchers: Additional regulations, permitting, government enforcement, and citizen lawsuits would commence,” Yager said. “An all-around bad deal for rural America.”
SEPTIC TANK PERMITS
Damien M. Schiff, senior attorney at the Pacific Legal Foundation who has successfully argued Clean Water Act cases before the court, said he believes the justices will craft a decision narrowly focused on groundwater.
“The Maui case is important because, if the Ninth Circuit’s decision is upheld, many normal land-use and farming activities will be regulated under the Clean Water Act’s point-source program that have never been regulated before under that program,” he told DTN.
“For example, a very plausible argument could be made that any septic tank that discharges to groundwater will require a Clean Water Act permit if the Supreme Court rules that pollution that travels through groundwater and reaches regulated surface waters is itself subject to regulation. Moreover, the difficulty with applying any standard of regulation for such pollution will compound the confusion and increase the costs that already are rampant in Clean Water Act administration.”
Schiff said he was “guardedly optimistic” the court would not uphold the Ninth Circuit, “Although I suspect that its decision will be limited to the groundwater context and will not address other examples of indirect discharges.”
SCENARIOS QUESTIONED BY COURT
One such pollution discharge question brought up during oral arguments before the Supreme Court: If polluted groundwater is deposited on a river bank, but not directly into a river, and those pollutants ultimately go into a river, is that a violation of the Clean Water Act?
Justices raised a number of similar questions, indicating they were unsure on how to rule on the case.
On April 15, 2019, the EPA released an interpretive statement reiterating the agency’s role in groundwater.
The agency said Congress excluded releases of pollutants to groundwater from permitting requirements and “instead left regulation of those releases to the states and EPA’s other statutory authorities.”
EPA said in being “consistent with Congress’ vision for a strong federal state partnership to protect the country’s groundwater resources,” the April 2019 guidance “recognizes the state’s leadership role in protecting groundwater and provides certainty” to states and others who implement and enforce EPA’s federal permitting programs.
“States should continue to take an active role in regulating discharges to waters within their jurisdictions, as provided in state law and envisioned under the CWA,” the statement said. “EPA will continue fulfilling its role in protecting groundwater and hydrologically connected surface waters as authorized by Congress through the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.”
The Maui case was challenged in the Supreme Court following a Feb. 1, 2018, ruling by a panel of the Ninth Circuit.
The Ninth Circuit concluded the county’s “four discrete wells were ‘point sources’ from which the county discharged ‘pollutants’ in the form of treated effluent into groundwater, through which the pollutants then entered a ‘navigable water,’ the Pacific Ocean.”
The Ninth Circuit decision said the Clean Water Act “does not require that the point source itself convey the pollutants directly into the navigable water” and that pollutants coming from the wells was “fairly traceable.”
During oral arguments before the U.S. Supreme Court on Nov. 6, attorney Elbert Lin, representing the County of Maui, argued the Clean Water Act text defines a point source as “discernible, confined, and discrete conveyance, and it thereby makes clear that the trigger for point source permitting is not where a pollutant comes from but how it reaches navigable waters.”
Attorney for the Hawaii Wildlife Fund David L. Henkin, said during arguments the Clean Water Act prohibits pollution to navigable waters from any point source.
“When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house,” Henkin told justices.
“Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off west Maui every day come from petitioner’s wells under any understanding of the term.
“If Congress had wanted to say point-source discharge that reaches the navigable waters through groundwater is exempt, because we want to leave that completely to the states, they would have said that in the language of the act. They didn’t.”
Todd Neeley can be reached at email@example.com
Follow him on Twitter @toddneeleyDTN
Source: Todd Neeley, DTN
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