Supreme Court Hears Clean Water Act Loophole Case

Maui, Hawaii   Photo: Hawaii Savvy, CC BY 2.0 via

Yesterday the Supreme Court heard oral arguments in a case about whether the Clean Water Act requires a permit for pollution from “point sources” — pipes and drainage ditches — that flow into a river or the ocean via another medium like groundwater or a wetland that is not covered by the statute.  In this case, a Hawaii municipal water treatment plant discharged polluted water through a pipe into the groundwater deep below the surface, but it turned out that the pollutants ended up in the nearby ocean and damaged coral reefs. Chief Justice Roberts could be the swing vote in the case — and apparently he was concerned that both sides’ positions were untenable.

Why This Matters:  The stakes are high for both sides. The water treatment plant argues that it did not discharge directly into a navigable water — the ocean or a river — so it can’t be held responsible under the Act — a technicality, but one that they say protects many facilities like theirs from the high cost of treating discharges like these, as well as excusing homeowners whose septic tanks might leak.  Environmental groups on the other side say that if a polluter is allowed to discharge into another medium like groundwater and the pollution then ends up in a navigable water, it will create a huge loophole in the Act.  The law is already being significantly narrowed because the Trump Administration is severely limiting the definition of what constitutes a “navigable water” of the U.S. (the WOTUS rule).  If this narrow interpretation of the Act allowing polluters to “launder” their discharges by flushing them through groundwater or wetlands, it would be another huge blow to clean water in this country.  

Trump Administration Reverses the U.S. Position

For many years, the EPA required permits for pollution that ends up in a river or the ocean (a “navigable water”) as long as there was a “hydrological connection” between the two.  But now the Trump Administration has changed the government’s position in the case, arguing that the Clean Water Act does not apply to discharges into groundwater no matter what happens to the pollution next.  The Court of Appeals below held that “‘The county could not under the Clean Water Act build an ocean outfall to dispose of pollutants directly into the Pacific Ocean…[It] would make a mockery’ of the law if it could do the same indirectly by sending through the pollution through the ground.”

What Does The Law Say?

According to SCOTUSblog, the authoritative source on all things about the Supreme Court, the environmental groups argue that it does not matter whether the discharge is direct or indirect — that the phrase “from any point source” means that if the pollutants come out of a pipe and end up in navigable waters, then those discharges must have a permit.  In this case, the pollution was “fairly traceable to the point source” and its “addition to navigable waters is the foreseeable, natural consequence of their release from that source.”

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