Supreme Court Says Wastewater Pros Should Examine Discharge Paths

The highest court in the land has made a ruling on the much-discussed County of Maui v. Hawaii Wildlife Fund case

Supreme Court Says Wastewater Pros Should Examine Discharge Paths

After a lot of buildup, the U.S. Supreme Court’s decision in a closely watched wastewater case turned out to be less than definite.

The case involved Maui County in Hawaii, which for years has disposed of effluent from its wastewater treatment plant in deep injection wells. Scientists found that effluent migrates through the soil and groundwater and enters the Pacific Ocean. Environmental groups sued and asked federal courts to require a National Pollutant Discharge Elimination System permit for the wells just as permits are required for other discharges into navigable waters. The worry for wastewater professionals was that the court would say any discharge to groundwater, such as from an onsite system, would require an NPDES permit.

In a 6-3 opinion, the court says it would — or maybe not. It all depends.

Some clarity

“What this opinion has effectively done is solidify the law to confirm that the Clean Water Act, in certain instances, does apply to discharges to groundwater,” says Joel Johnston, an associate in the Denver office of law firm Hall Estill. “So I think the court has provided a little bit of clarity.”

In doing that, the court threw out a test developed by the 9th U.S. Circuit Court of Appeals in San Francisco, which heard the case from Maui first. That test says permits would be required for discharges that are “fairly traceable” to a point source. But, Johnston says, the Supreme Court decided the appeals court test would require too many activities to have permits.

“And the court said, based on that, the Clean Water Act was not intended to address any discharge into groundwater. It’s only intended to address discharges where the discharge is a functional equivalent of a discharge into a navigable water,” Johnston says.

From a technical regulatory point of view, the court laid out a seven-factor test that courts, regulators and installers need to look at in deciding whether a discharge is functionally equivalent, says Mary-Lynn Coffee, senior environmental partner in the Irvine, California, office of the law firm Nossaman.

Those factors include the time and distance a pollutant has taken to travel through groundwater, and these are generally the most important factors, the court wrote; the nature of material the pollutant has travelled through; the extent of dilution; the amount of pollutant entering a navigable water versus the amount discharged from the source; the manner by which the pollutant enters the navigable water or the area where it enters; and the degree to which the pollutant has maintained its identify.

“I think the test is as clear as any regulatory test ever is,” Coffee says. “I thought it was very good that the court talked about what changes in the character of pollutant had occurred, the degree to which the pollution had maintained its specific identity or changed into something else.

“That factor allows consideration of the degree to which both chemical and natural filtration processes relied upon by onsite filtration systems provide treatment of waste prior to its arrival in a surface water,” she says.

Whether a discharge needs a permit is now an issue to be resolved by lower courts and state and federal agencies, Johnston says. An important point in this case, he says, is the Supreme Court did not say that Maui County needs a permit. Instead, the case was sent back to the 9th U.S. Circuit Court of Appeals, which will make that decision.

How much onsite regulations will change depends on the state, Coffee says. In California there may not be many changes because the statewide policy already contains requirements like those the court outlined in the Maui decision, she says. In states that have not taken into account the potential for effluent to migrate to surface waters, expect new standards or perhaps an NPDES permit.

Both attorneys say the court’s opinion still leaves a lot of gray areas. It also leaves room for a good deal of factual material and analysis by hydrologists, geologists, soil scientists and other specialists who can determine where a pollutant will go and what will happen to it, Coffee says. “So applying it on the ground, I think that’s pretty tough. But so are the regulations that exist in many places today.”

What you can do

For installers wondering how to avoid problems under the court’s ruling, Johnston says the solution may be to talk to regulators before there are questions about a potential violation or noncompliance. But it’s also not wise to simply ask whether a permit is necessary. Instead, he says, develop a position based on facts and an analysis of the situation, and ask the regulator if that position is correct.

Another type of uncertainty stems from the Clean Water Act itself because it allows for lawsuits by private citizens, Johnston says.

“That’s where the risk is. If you don’t get the permit and a citizen suit is brought, you could be caught having to spend substantial sums to deal with it,” he says. “We’re corporate attorneys. From our perspective, the clarity my clients don’t have is whether an activity is subject to permit.”

Coffee recommends two actions for wastewater professionals. First, when doing an onsite project, try to develop technical information about the soils in the area, groundwater, groundwater flow, distance to surface water and other information related to the factors laid out in the court’s functional equivalent test. Next, use that information to guide siting, installation and operation, and then keep the information as protection in case there is a legal or enforcement challenge.

Second, she says, become involved with your state wastewater organization, and through that try to work with regulators in developing the rules they will use and the guidance they may produce to comply with the court’s ruling. There is protection from liability for an onsite system owner and installer if a system has been installed in accordance with regulations, she says.

Although it is California-specific, Coffee says, the water board policy for onsite systems does take the court’s ideas into account. If you want to look at it, click here.

The next disagreements

The majority opinion came from the four justices generally viewed as more liberal — Stephen Breyer, Sonia Sotomayor, Ruth Ginsburg and Elena Kagan — along with Chief Justice John Roberts and the newest justice, Brett Kavanaugh. Dissenting were the more conservative justices: Clarence Thomas and Neil Gorsuch in one opinion and Samuel Alito in another. If you want to read the full opinion, you can find it here.

It’s unlikely there will be more litigation about the rule right away in lower courts, Coffee says. “I really think the first battle we’re going to see, because the court invited it, is a battle over (U.S. Environmental Protection Agency) regulations. The court invited the EPA to promulgate more specific implementing regulations consistent with their opinion. And when they do so, litigation over the regulations is probably inevitable.”

But given the number of issues the EPA is already dealing with, she says, it’s very unlikely any new regulations would be adopted before November.

Reclamation started it

The case started with Maui County because for years it has sent municipal wastewater through its Lahaina Wastewater Reclamation Facility. That plant treats incoming wastewater, disinfects it with ultraviolet light and sends it out to irrigate golf courses and landscaping. Excess water is sent to several injection wells.

From 2011 through 2012, University of Hawaii researchers working for the EPA, Hawaii Department of Health, and U.S. Army Engineer Research and Development Center in Vicksburg, Mississippi, used a tracer dye to follow the flow of water from the injection wells. Their study found that treated wastewater was flowing into groundwater and back into the ocean near Kahekili Beach. There it was linked to algae blooms that smother coral reefs and cause other environmental damage.

The largest concentration of dye appeared in the ocean nine to 10 months after injection at the wells, the study says. Researchers estimated it would take about four years for the last bit of dye to enter the ocean.

In a column for The Maui News, Maui Mayor Michael Victorino writes that the court’s direction is what he’s asked for all along. “Clear direction for regulation. The court’s test gives the county and the state Department of Health a road map moving forward. It provides clarity before we commit taxpayer dollars toward long-term environmental solutions. So far, the county has spent $48 million on recycled water projects, and it has another $82 million in projects planned or in process in the near future.”

In September 2019, the County Council voted to settle the case, which in most cases would have led to the withdrawal of the case before it was argued before the Supreme Court. But Victorino refused to settle. That set off a struggle over who had the ultimate power to determine a legal settlement, the council or the mayor, but it also ensured the case was argued before the court in November.

Victorino notes that the county has operated its reclamation plant in compliance with the Safe Drinking Water Act for decades.

“We all share the same goal: an ocean that is safe for marine life and our people,” he writes. “I want to mahalo all the environmental groups, attorneys and the Supreme Court for addressing this issue and protecting our wildlife. My administration remains committed to recycling as much wastewater as possible and continuing to work with the Department of Health and other regulators.”



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