This article was published on: 04/29/20 12:00 AM
Groundwater will be regulated less strictly under the U.S. Supreme Court’s new interpretation of the Clean Water Act compared to an earlier legal standard affecting several Western states.
The nation’s highest court has rejected a more expansive understanding of groundwater as a channel for pollution that had been imposed by the 9th U.S. Circuit Court of Appeals.
For farmers and ranchers in the nine Western states under the 9th Circuit’s jurisdiction, the reversal of the appellate court’s decision potentially reduces their liability under the Clean Water Act — but experts say they still have plenty to worry about with the new legal understanding of that statute.
“It’s better than it would have been had the 9th Circuit’s decision stood. However, I’m skeptical as to how much better,” said Damien Schiff, an attorney with the Pacific Legal Foundation, which supports property rights.
While the Supreme Court didn’t consider groundwater to be as direct a route for unlawful pollution as did the 9th Circuit, it’s regulated as a conduit in a way that may prove problematic for agriculture, according to legal experts.
Farm organizations had hoped the Supreme Court would clearly state that groundwater can’t serve as a “pipe” for pollution to other waterways regulated under the Clean Water Act, said Norman Semanko, an attorney representing irrigators with the Family Farm Alliance nonprofit.
“It’s certainly a better test, but it’s not a bright line rule, which is what we advocated for,” Semanko said of the Supreme Court ruling.
The specific dispute that gave rise to the broader legal controversy over groundwater pollution pertains to a facility on the Hawaiian island of Maui, which injects partially treated wastewater into wells.
In 2018, the 9th Circuit ruled the wastewater facility is liable under the Clean Water Act because pollutants seeping into the Pacific Ocean were “fairly traceable” to the injection wells, or the “point sources” of discharge.
Farm organizations feared that “basic agricultural activities,” such as pesticide and fertilizer applications, would be subject to lawsuits, penalties and expensive permits under this legal standard.
The Supreme Court’s 6-3 decision, written by Associate Justice Stephen Breyer, has now determined the 9th Circuit’s “focus on traceability” vested the Clean Water Act with too much authority over groundwater.
In light of the “power of modern science,” the 9th Circuit’s interpretation may require permitting even for “the 100-year migration of pollutants through 250 miles of groundwater to a river,” Breyer said.
On the other hand, the Supreme Court also rejected a competing legal interpretation from the U.S. Environmental Protection Agency, which argued the point source of discharge isn’t regulated if pollutants pass through groundwater before reaching a navigable waterway.
Breyer said this understanding was “too narrow” because it would “risk serious interference with EPA’s ability to regulate ordinary point source discharges.”
Under the EPA’s interpretation, polluters could simply move a discharge pipe back “a few yards” so that it first travels through “at least some groundwater,” thus opening a “large and obvious loophole” that wasn’t intended by Congress, he said.
Instead, the Supreme Court has adopted a legal standard under which Clean Water Act permits are required when there’s a “functional equivalent of a direct discharge” — requiring an analysis of the time and distance that pollutants must travel, among other factors.
Compared to the 9th Circuit’s test, these criteria will require a stronger link to the point source of pollution to establish the need for a Clean Water Act permit, said Schiff of the Pacific Legal Foundation.
“Even if you could trace it back, that doesn’t necessarily mean there’s liability,” he said.
The ruling’s nationwide impact will particularly be felt by the agricultural industry outside the ninth circuit, said Semanko of the Family Farm Alliance.
“The door is now open for arguments that discharges to groundwater require a permit,” he said.
However, the opinion isn’t necessarily a reason to panic about Clean Water Act liability, as agriculture will still keep existing exemptions, such as for irrigation return flows, Semanko said. “This decision doesn’t change that.”
In less clear-cut cases, though, determining whether a violation has occurred may prove treacherous, said Tony Francois, an attorney with the Pacific Legal Foundation.
“There’s not a formula that tells you: If it’s this far away, then it’s not regulated. Or if the pollutants move this slowly, it’s not regulated,” he said. “It depends on things that are the hardest about groundwater to answer.”