Showdown over Clean Water Act heads to Supreme Court

Diver and Racoon-Butterflyfishes, Chaetodon lunula, Cathedrals of Lanai, Ma
Diver and Racoon-Butterflyfishes swim in the Cathedrals of Lanai, Maui, Hawaii. Copyright Reinhard Dirscherl ullstein bild via Getty Images file
By David Douglas with NBC News Politics
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Environmental groups caution the case could open the door to unregulated pollution.


The primary federal law regulating water pollution in the United States will face a significant test before the Supreme Court Wednesday when justices hear oral arguments over the Clean Water Act's role in curtailing environmental damage.

The case centers on a wastewater treatment plant in Maui, Hawaii and has pitted swaths of industry and government against each other over how the act is interpreted.

The Lahaina Wastewater Reclamation Facility opened in 1975, processing millions of gallons of sewage each day, injecting the treated wastewater deep underground. A University of Hawaii geologist traced the flow of the treated waste and found much of it ended up in the Pacific Ocean, resulting in damage to a coral reef.

The chief tenet of the Clean Water Act requires polluters to get a federal permit for pollution that enters "navigable" water, such as a river, lake, or in this case. the Pacific Ocean. The County of Maui has argued the act does not apply because the wastewater isn't flowing into the Pacific but rather groundwater beneath the plant.

The 9th U.S. Circuit Court of Appeals did not agree, siding with environmental groups who argued the groundwater discharges damaged the reef and amount to a "direct" injection of wastewater.

Drew Caputo, an attorney for the group Earthjustice, which will argue the case on behalf of the Hawaii Wildlife Fund and other environmental groups, says if Maui County were to win the case, it would open the door for polluters to bypass the Clean Water Act by simply relocating or modifying the manner in which they discharge waste.

"If that were the law, every polluter whose pipe goes sideways and now needs to get Clean Water Act permit, has a powerful incentive to point their pipe down because then it won't be regulated," Caputo said.

A variety of industries are closely watching the case, including pipeline company Kinder Morgan Energy Partners, which operates more than 80,000 miles of pipelines transporting natural gas, crude oil and gasoline. The company is named in another case pending before the court, in which a citizen-suit claims it violated the Clean Water Act in an accidental pipeline discharge into groundwater.

Attorneys for the company filed a brief in the case supporting Maui County.

"Numerous state and local regulatory regimes (and even some federal ones) already address soil and groundwater pollution," they wrote, "making it unnecessary (and counterproductive) to extend the CWA into that area."

The Environmental Protection Agency, which initially supported environmental groups in the case, has switched sides. After long maintaining the Clean Water Act applied to waters hydrologically connected to navigable waters, it released a statement in April that appeared to side with the County of Maui.

Former EPA officials are pushing back on that pivot.

"Accepting the United States' recent reversal in position would effect a significant rollback in regulatory enforcement of the CWA that has been in place for decades," a bipartisan group of former agency administrators wrote in a brief filed supporting the environmental groups.

In an early sign of just how far-reaching the effects of the decision could be, regulators in Alaska are awaiting the outcome of the case before deciding on a mine exploration permit for a project that could result in groundwater discharges into rivers where salmon spawn.

While controversy over the case has ricocheted around the United States, it has caused significant rancor on the Island of Maui itself. In September, the County Council voted to settle and withdraw the case, but Maui County Mayor Michael Victorino disagreed, writing to residents that they would be "best served" by having the Supreme Court conclude the outcome.

"We should not risk the staggering costs of retrofitting treatment plants, jeopardizing our recycled water program or exposing our taxpayers or residents to costly legal battles over a new interpretation of regulations for wastewater disposal," he wrote.

The court is expected to rule sometime in June.

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