Missing the point (source): A pollution case in Hawai’i threatens to upend the Clean Water Act nationwide

Today the Supreme Court heard arguments in the case of County of Maui v. Hawai’i Wildlife Fund, a case that could fundamentally change how the Clean Water Act (CWA) has been implemented for decades.  At issue is whether the CWA has jurisdiction over pollution that discharges from a point source and takes an “indirect” route to a navigable water.  Maui County operates a wastewater treatment plant that discharges millions of gallons of treated sewage into groundwater beneath the facility, which then seeps into the Pacific Ocean.  No one is contesting the fact that the treated sewage is coming from the plant and is visibly damaging a nearby coral reef.  Rather, the County is making the legally dubious and, as a practical matter, non-sensical argument that the plant is not directly discharging from a point source into a navigable water – the treated sewage is travelling through groundwater first – and therefore does not require a Clean Water Act permit. 

The plain language of the CWA prohibits “any addition of any pollutant to navigable waters from any point source” without regard to whether it is direct or “indirect.”  The Hawai’i District Court and 9^th Circuit Court agreed with Hawai’i Wildlife Fund that the plant’s injection wells are a point source that sent pollutants to the definitely navigable Pacific Ocean in violation of the CWA.  The argument that the CWA does not apply because the pollutants were transported from the point source by groundwater to the ocean was condemned by the district court as “mak[ing] a mockery” of the Clean Water Act by essentially allowing groundwater to be used as unregulated “open sewers” for moving pollution to rivers, streams and oceans. 

Nevertheless, the Supreme Court took up the case and the Trump administration, reversing the EPA’s long-held position, filed a brief supporting Maui County’s cramped interpretation of the CWA – another assault in the Trump administration’s continuing war on the Clean Water Act.  If the Court rules in favor of Maui County, it would open what a bipartisan group of former EPA administrators describe as an “enormous loophole” in the CWA, allowing polluters across the country to bypass the Act by directing point sources into groundwater or simply dumping waste on the ground and allowing it to seep into nearby streams(!)  This is an absurd result, of course, but a terrifying one; hopefully the Supreme Court will agree and prevent this loophole from ever opening.  If not, champions for clean water everywhere will have yet another fight on our hands.