By Juan Carlos Rodriguez
Law360 (July 12, 2019, 10:52 PM EDT) — Green groups on Friday urged the U.S. Supreme Courtto uphold the Ninth Circuit’s holding that Clean Water Act permits may be required for pollution sources that discharge contaminants via groundwater.
The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association said Congress clearly intended the act to cover unpermitted pollution discharges that “actually and foreseeably” reach navigable surface waters. They said Maui County, which is challenging the Ninth Circuit’s ruling, relies on a misguided reading of the act to support its argument that permits are not required for such discharges.
The U.S. Environmental Protection Agency, which has authority to approve the National Pollutant Discharge Elimination System permits at issue, agreed in an amicus brief supporting Maui County that the Ninth Circuit decision should be overturned.
But the environmental groups said Friday, “Either the county’s or EPA’s view … would open a substantial loophole in the CWA, allowing polluters to achieve indirectly what they cannot do directly: discharge pollutants from point sources into navigable waters without a permit.”
The groups sued Maui County in 2012, accusing it of violating the act by not obtaining a NPDES permit for sewage wastewater injection wells that discharged pollution into the Pacific Ocean via groundwater.
In their Supreme Court brief, the groups cited the CWA’s provision that prohibits “any addition of any pollutant to navigable waters from any point source,” and said the county’s wells are point sources, the waste the wells discharge are a pollutant, and the Pacific Ocean is a navigable water.
“The introduction of the effluent to the Pacific is an ‘addition’ of pollutants ‘to’ those waters. And that addition comes ‘from’ the county’s point-source wells: The wells are both the pollutants’ point of departure and a factual cause of their addition to navigable waters,” the brief said.
And the groups said the Clean Water Act does not just cover pollution that enters navigable waters directly from point sources, “without any intermediate means of transmission.”
They disputed the county’s assertion that the CWA only applies when a point source pollutes “directly” to navigable waters and the EPA’s argument that would exclude discharges that occur through groundwater.
“The County of Maui’s attorneys have done a wonderfully Orwellian job of professing support for the Clean Water Act while simultaneously trying to blow a hole in the law that protects our nation’s rivers, lakes and oceans,” Earthjustice attorney David Henkin, who represents the green groups, said Friday.
The Ninth Circuit in February 2018 sided with environmental groups that argued Maui violated the act by not obtaining a federal NPDES permit for the sewage wastewater injection wells.
Maui County argued in its brief that the CWA clearly gives states sole permitting authority over those sources, and asserted that if the circuit court’s ruling is allowed to stand, it would result in a vast expansion of federal power contrary to the act’s intent.
According to the county, the high court should look to two Sixth Circuit rulings, also handed down last year, that split from its sister circuits’ findings and held that a point source permit is not required where pollution reaches navigable waters via a nonpoint source.
There has been some discussion among newer Maui County Council members about whether to settle the lawsuit, which would take it out of the justices’ hands, but there’s been no official action on that yet.
A bill was introduced that would give the council authority to settle the suit, as that power currently lies with the mayor, but it has not emerged from the Governance, Ethics and Transparency Committee, and Maui County Council Supervising Legislative Attorney David Raatz said Friday it’s unclear if and when the bill might proceed.
The Maui mayor’s office and the U.S. Department of Justice did not respond to requests for comment Friday.
The high court in February agreed to hear the case. Oral arguments are scheduled for Nov. 6.
The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association are represented by David L. Henkin and Janette K. Brimmer of Earthjustice, Scott L. Nelson of Public Citizen Litigation Group and Amanda C. Leiter of American University Washington College of Law.
Maui County is represented by Elbert Lin, Michael R. Shebelskie, Colleen P. Doyle and Diana P. Martin of Hunton Andrews Kurth LLP and county attorneys Moana M. Lutey and Richelle M. Thomson.
The federal government is represented by Noel J. Francisco, Malcolm L. Stewart, Judy B. Harvey, Matthew R. Oakes and Frederick H. Turner of the Solicitor General’s Office, Eric Grant, Allon Kedem and David S. Gualtieri of the DOJ’s Environment and Natural Resources Division and Matthew Z. Leopold, David Fotouhi and Lauren T. Maher of the EPA Office of General Counsel.
The case is County of Maui v. Hawaii Wildlife Fund et al., case number 18-260, in the U.S. Supreme Court.
–Editing by Nicole Bleier.