Published June 18th, 2020 by Budd-Falen Law Offices, L.L.C.
The Clean Water Act is rearing its ugly head yet again. The Supreme Court recently passed down an opinion that further expands the powers of the Environmental Protection Agency (EPA) under the Clean Water Act. This new decision requires federal permits for sources of pollutants that have previously been under the control of states. This has the potential to create greater obstacles for agricultural producers as well as the oil and gas industry and even homeowners.
In County of Maui v. Hawaii Wildlife Fund environmental groups targeted a wastewater a reclamation facility in Hawaii that had been placing treated water into underground wells for disposal. This wastewater then merged with ground water before reaching the edge of the island and entering the ocean. The County did not think it was required to have a permit because the Clean Water Act requires permits only for pollutants being released into “navigable water ways,” which ground water has not traditionally been considered. Navigable waters include things like major rivers, streams, and oceans that are currently, or have historically been, used for interstate commerce. They believed their discharge of wastewater into groundwater was beyond the scope of the Clean Water Act. However, the Supreme Court disagreed, instead deciding that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge…into navigable waters.”
Perhaps the most disturbing aspect of this decision is its vagueness as to what can be considered a “functional equivalent.” The Court only mentioned that “time and distance” will be important in deciding this. But just how much time and how much distance? That was left unclear and leaves a great deal of interpretation in the hands of the EPA. This decision could be found to include limitless waste sources that eventually – after spending a great deal of time in the ground water system – reach navigable waters. Additionally, the relationship between ground water and surface water is an ongoing study; this provides greater uncertainty as to what water can end up where, thus more questions as to who will need a permit. This may have severe impacts on agriculture and the oil and gas industry because they may now have to further permit operations that may enter groundwater or potentially risk heavy fines and lawsuits. Homeowners could also face potential challenges if they have a septic system. The drainage from these systems reaches the water table and may eventually land in a navigable waterway.
To make matters murkier, the EPA recently announced a much-awaited final rule on the controversial definition of “Waters of the United States;” these are waters that fall under the control of the Clean Water Act’s “navigable waters” language. This definition has been a hotly contested and litigated issue, and the final rule was to be a huge step forward. However, the Supreme Court’s decision appears to actually take things backward. According to the new rule, “groundwater, including groundwater drained through subsurface drainage systems” was to be specifically excluded from the control of the Clean Water Act. However, the Supreme Court’s decision is quite opposite this announcement.
The EPA was adamant during litigation of the Maui case that it did not have jurisdiction over the groundwater in question, but the Supreme Court has now dropped the power in their lap. This is a major affront to States, as they have held the power over ground water in many settings until now. Many state and local governments have implemented their own processes for regulating groundwater discharges, and this ruling appears to infringe on the power they have long held.
At this point it is unclear what effects the Supreme Court’s decision will have on the recent Waters of the U.S. rule, but it appears to be a great concern to land and homeowners as well as multiple industries because the Clean Water Act is now vaguely tied into groundwater that may be connected to other Waters of the U.S. The issue surrounding the new Waters of the US definition and this recent Supreme Court ruling is one that should be followed closely because if taken to its extreme, the Clean Water Act could greatly interfere in the average American’s life and the EPA will have even greater power than it already holds.
Conner G. Nicklas
Falen Law Offices, LLC
 Conner G. Nicklas is an Associate Attorney with Falen Law Offices, LLC with a primary focus on property rights, environmental, and natural resources law. Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming. This article should not be understood to state or imply that any lawyers of this law firm are certified as specialists in a particular field of law. Colorado does not certify lawyers as specialists in any field. The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This article is informational and is not legal advice. Use of this article or contact with this law firm does not create an attorney-client relationship.
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