Agricultural groups fear that farmers nationwide will face increased Clean Water Act liabilities if the U.S. Supreme Court upholds an environmentalist victory in a lawsuit over wastewater treatment.
On Nov. 6, the nation’s highest court heard oral arguments in the legal dispute over a facility in Hawaii that injects treated wastewater into the ground.
Last year, the 9th U.S. Circuit Court of Appeals ruled that the treatment plant owned by Maui County was required to obtain a Clean Water Act permit even though it didn’t discharge directly from a “point source” into a navigable waterway.
The treatment plant was still required to obtain such a permit because the pollutants eventually seep into navigable water and can be traced back to the facility’s injection wells in more than minimal quantities, according to the 9th Circuit.
While the case pertains to a wastewater treatment plant, agricultural organizations argue the 9th Circuit ruling will effectively require farms and ranches that were traditionally considered “non-point sources” of pollution to obtain National Pollutant Discharge Elimination System permits or face lawsuits and penalties.
The American Farm Bureau Federation, National Cattlemen’s Beef Association, Family Farm Alliance and several other organizations claim that under the 9th Circuit’s opinion, farmers would be regulated under the federal law if they apply fertilizers and pesticides to land that eventually leak into groundwater.
“Ordinary farmers and ranchers would be unable to undertake the most basic agricultural activities without risking crushing fines or assuming the often unmanageable cost and prohibitively long delays associated with obtaining NPDES permits,” the groups said in a court brief.
During the oral arguments, Supreme Court justices asked questions probing the more extreme outcomes possible under differing interpretations of the Clean Water Act.
“So what happens if you just take the pipe and you decide what we'll do is we're going to end the pipe 35 feet from the river or from the ocean or something?” asked Associate Justice Stephen Breyer. “Now you know perfectly well that it'll drip down into the ground and it'll be carried out into the navigable water.”
Elbert Lin, attorney for Maui County, said that if the pollutants first flowed into the groundwater, then they’d be regulated under non-point source management programs that are overused by state governments.
Breyer responded that this approach would amount to “an absolute road map for people who want to avoid the point source regulation” and that he’s looking for “a standard that will prevent evasion.”
The federal government, which sided with Maui County’s interpretation, doesn’t believe the scenario in which pollutants “will travel through two inches of groundwater but won’t travel over land doesn’t seem realistic,” said Malcolm Stewart, deputy solicitor general for the U.S. Department of Justice.
Stewart acknowledged, however, that an underground pipe releasing pollutants wouldn’t be regulated as a point source under the government’s interpretation, since the law distinguishes between ways that pollutants enter the water.
“And so, for example, if you apply fertilizer to your lawn and a rainstorm comes and the fertilizer is washed into a nearby river, the contraption that you use to apply the fertilizer might fit the statutory definition of a point source, but that would still be treated as non-point source pollution,” he said.
The plaintiffs in the underlying lawsuit — Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association — maintained that pollutants don’t need to flow directly into waterways to be regulated as point sources.
“When you buy groceries, you say they came from the store, not from your car, even though that's the last place they were before they entered your house,” said David Henkin, attorney for the environmental groups.
Associate Justice Samuel Alito wondered how the environmental groups would approach a rural family that inadvertently installs a faulty septic tank that eventually leaches pollutants into groundwater that flows into a navigable waterway.
“So would they be violating the Clean Water Act for lack of a permit and would be subject to all the penalties that go with that for every day of the violation?” Alito asked.
Henkin, the environmental groups’ attorney, said that a homeowner who had no reason to believe pollutants from the septic tank would flow into navigable waters would not be held liable under the Clean Water Act.
It’s also unlikely that pollution in a navigable waterway could be traced back to a single homeowner, since many people in the countryside own septic tanks, Henkin said.
That position led Chief Justice John Roberts to pose the problem in the context of an “Agatha Christie novel.”
“You have 20 people and they shoot the gun at the guy at the same time,” Roberts said. “No one’s guilty?”
Henkin said the Maui County treatment plant is unique because it’s intentionally designed to force treated wastewater through wells into groundwater at a rate of millions of gallons per day.
To trace the pollution back to its source and determine that its discharge into waterways was foreseeable, “you need a big discharger” such as the treatment facility, he said.
Whiskey was also used an an example throughout the arguments. If it’s poured into the punch, is the source a pocket flask, or the original bottle, or a “barrel in Scotland?”
The point source of discharge regulated under the Clean Water Act could be interpreted as being very remote, said Justice Alito. “So what concerns me is whether there is any limiting principle that can be found in the text and is workable and does not lead to absurd results.”