The Back Story
In 1861 the Ohio Supreme Court ruled (Frazier v. Brown) that movement of groundwater was 'so secret, occult and concealed' that it could not be regulated by the law. That decision was overturned in 1984 by the OSC. Justice Holmes wrote:
“. . . a primary goal of water law should be that the legal system conforms to hydrologic fact. Scientific knowledge in the field of hydrology has advanced in the past decade to the point that water tables and sources are more readily discoverable. This knowledge can establish the cause and effect relationship of the tapping of underground water to the existing water level. Thus, liability can now be fairly adjudicated with these advances which were sorely lacking when this court decided Frazier more than a century ago.”
Many people did not get the memo. Some of my hydrogeological colleagues (jokingly) would like to argue that Frazier v. Brown is still true and that the practice of groundwater hydrology is still a 'black art' of sorts - sort of like my PhD dissertation.
So What's the Problem?
Maui County, Hawaii, injects tertiary-treated wastewater at its Lahaina Wastewater Reclamation Facility (LWRF) The treated wastewater is injected into the groundwater via four wells located about 1 km from the beach. About 60% of the treated wastewater reaches the ocean; the County injects about 15 million liters per day (12 acre-feet per day).
The simple graphic from Maui Online shows the injected water intercepting the ambient groundwater flow that transports it towards the ocean.
Although the water is treated, it is not free of pollutants (especially N and P). Opponents of the operation claim that the ocean water is being polluted and the LWRF needs a permit. The County claims it is within its rights and does not require a permit to inject the water because the Clean Water Act deals only with point sources, not groundwater seeping into the ocean over an area larger than a 'point' - such as discharge from a pipe. Furthermore, the CWA does not regulate groundwater.
So it was off to court, and ultimately, the Supreme Court (SCOTUS) after Maui County lost at all previous levels.
The Main Event
The Supreme Court of the United States (SCOTUS) finally got the 'secret, occult and concealed' message - sort of. On 23 April 2020 SCOTUS ruled (read decision) 6-3 that the Clean Water Act applies to the groundwater that pollutes surface-water bodies just as if a pipe were discharging pollutants directly into the water body. Justices Breyer (opinion writer), Roberts, Kavanaugh, Ginsburg, Sotomayor, and Kagan voted 'for'; Justices Gorsuch, Thomas, and Alito voted 'against'.
Interesting that two conservative justices provided the margin of victory. Roberts' position was not surprising but I think Kavanaugh's was. It should be noted that the Trump administration supported the overturning of the lower courts' rulings.
From Todd Neeley in Progressive Farmer:
A U.S. Supreme Court ruling on Thursday in the case County of Maui v. Hawaii Wildlife Fund leaves open the possibility the EPA can regulate groundwater.
The high court vacated and returned a ruling to the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The Ninth Circuit previously ruled pollution discharges traveling through groundwater and to a navigable water require Clean Water Act permits, the court said in its opinion.
Writing the majority opinion, Justice Stephen Breyer said releases of pollutants to groundwater that eventually make their way to navigable waters require National Pollutant Discharge Elimination System (NPDES) permits if they are the "functional equivalent of a direct discharge."
From Warren Cornwall's piece in Science:
The decision is a win for environmentalists, who feared the court might side with the Trump administration’s argument that the law didn’t apply to groundwater. In the decision, Justice Stephen Breyer wrote that groundwater pollution was subject to federal water-quality regulations as long as the connection to surface waters was the “functional equivalent” of a direct discharge such as a pipe.
The new standard will hinge on scientific studies of how water and chemicals move underground, says Pat Parenteau, an environmental law expert at Vermont Law School. “It puts the science front and center,” he says. “The hydrologists should be happy.” (NOTE: This on sure is!)
That’s partly because questions of when the law applies will come down to the scientific details of individual cases. The court’s decision spells out criteria that might influence whether groundwater pollution meets the new standard and is covered by the law. Those criteria could include how quickly and how far the pollution moves from its source before reaching surface water, the underlying geology, and how much the chemicals are diluted or broken down. “The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances,” Breyer writes.
My Ten Cents
1) Yes, this is a victory for science - groundwater science. You probably don't have time to read the (500 pages) UH report by Craig Glenn et al. but it is quite a tome. Even Justice Breyer gave science a shout-out.
Here is Warren Cornwall again:
Tracing the movement of pollutants through groundwater is tricky work, says Thomas Harter, a
hydrologist at the University of California, Davis, who helped draft an amicus brief to the court from several scientific associations. Much of what’s happening is underground, obscured except for data gathered from test wells and geologic samples drilled from boreholes. Impacts can take decades to materialize as water and contaminants slowly seep through the earth.Computer models coupled with direct observations of water flow, pollution levels, and geology can predict how chemicals are likely to flow and interact with the chemistry of surrounding rocks. But, “There are huge uncertainties to this,” says Harter, who studies groundwater pollution from California farms. “It’s not unlike trying to predict the weather.” (During oral argument of the case in November 2019, however, Breyer remarked that briefs laying out the science of tracking groundwater pollution had impressed him. “The scientists really convinced me they’re geniuses and they can trace all kinds of things,” he said.)
The new legal yardstick won’t be that different from what state and federal regulators have done for decades, predicts David Henkin, a Honolulu-based attorney for the environmental law firm EarthJustice, who argued the case before the Supreme Court. Previously, regulators held that the federal law applied whenever they found a “direct hydrologic connection” between groundwater and surface water. “Science always has and will continue to play an important role in understanding the bounds of the Clean Water Act,” Henkin says.
Shout-outs to Thomas Harter and Craig Glenn!
2) The agriculture, mining, hydrocarbon and other communities are probably quite nervous now.
3) Add water managers and state agencies to the above.
4) Glad to see that scientific societies submitted an amicus curiae brief.
5) The path forward is unclear. SCOTUS did not seem to chart one but I am unsure it is supposed to. The scientific/water resources and legal communities need to discuss this. That's a tough call since the states and many others (agriculture, mining, hydrocarbon) would not be supportive of allowing the Federal government (EPA) to regulate groundwater.
6) Provide input to EPA rule-making.
7) I support bringing groundwater into the CWA. Two words: transboundary groundwater. There is more of that than you can imagine - consider the High Plains aquifer - underlies 8 states.
8) Have to deal with the time issue in groundwater pollution issues - how does that relate to the legal issues?
9) Love the expression 'functional equivalent'.
Enjoy!
Sources:
Science article by Warren Cornwall
Ensia article by Cynthia Barnett
Wellowner.org
SCOTUS blog article by Lisa Heinzerling
Progressive Farmer article by Todd Neeley
University of Hawaii-Manoa study (source of last three graphics of the site)
USGS Report
Be sure to read this great piece by Tiff Dowell Lashment in the Texas Ag Law blog.
“It puts the science front and center. The hydrologists should be happy.” - Pat Parenteau, Vermont Law School
"The scientists really convinced me they’re geniuses and they can trace all kinds of things.” - Justice Stephen Breyer, November 2019 (thanks Warren Cornwall)
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