Author Topic: Argument preview: Justices to consider reach of Clean Water Act’s permitting requirement  (Read 553 times)

0 Members and 1 Guest are viewing this topic.

Online Elderberry

  • TBR Contributor
  • *****
  • Posts: 19,905
SCOTUSblog by Lisa Heinzerling 10/30/2019

The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation’s waters of any pollutant that comes “from any point source.” Congress’ high hopes for the cleansing power of the act’s permitting system are reflected in the name Congress chose for it – the “national pollutant discharge elimination system” – and the attendant statutory goal that “the discharge of pollutants into the navigable waters be eliminated by 1985.” Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system’s reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued next Wednesday, asks whether the act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”

Both sides warn of the dire consequences that will ensue if the Supreme Court rules against them. The County of Maui asserts that a ruling that its discharges require a permit may subject millions of pollutant sources to the Clean Water Act’s permitting requirement for the first time. The respondents counter that a contrary ruling will open a large loophole by allowing polluters to dump unlimited amounts of pollutants into navigable waters through the simple expedient of locating their outfall pipes a few feet upland or inland of navigable waters. Twenty-nine amici, including the United States, offer their perspectives.

The case involves pollutant discharges from a wastewater treatment plant in Hawaii. The County of Maui owns and runs a facility that treats sewage from local homes and businesses and daily injects several million gallons of the treated sewage into underground wells designed for this purpose. From the wells, the treated sewage runs into the groundwater under the facility. The wastewater then travels through the groundwater to the Pacific Ocean a half-mile away. In the wells’ decades of operation, the County of Maui has never had a Clean Water Act permit for its discharges, although it has always known that pollutants from its wells reach the ocean.