WASHINGTON, DC –- June 4, 2019 -– The Water Systems Council (WSC) and the National Ground Water Association (NGWA) have filed an amici curiae (friends of the court) brief in the case of County of Maui, Hawaii v. Hawaii Wildlife Fund that is currently pending in the U.S. Supreme Court.
In the case, the Court will consider the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
Maui County injects wastewater into injection wells near the ocean. The wastewater is added to groundwater, much of which then makes its way into the ocean, a navigable water body. The question is whether this "indirect" discharge requires a National Pollution Discharge Elimination System (NPDES) permit. A permit is clearly required if a discharge is made directly to navigable waters, but lower courts have split on whether a permit is required in this situation. In this case, the U.S. Court of Appeals for the Ninth Circuit found that the County needed a NPDES permit.
The WSC/NGWA brief argues that the release of pollutants by Maui County is covered by the nonpoint source provisions contained in 33 U.S.C. § 1329 of the Clean Water Act. Applying the NPDES provisions in the Clean Water Act to releases to groundwater would both disrespect the clear structure of the Act and prove difficult in practice, according to the brief. Other federal and state laws already apply to releases to groundwater, and adding the NPDES permit system to the list would further fragment an already fragmented system of regulation.
Alternatively, 33 U.S.C. § 1329 contemplates a cooperative effort between the federal government, states, and Indian tribes to address discharges to groundwater. Given the diversity of geology, climate, and use of groundwater resources, states should play the lead role in regulating these releases.
The WSC/NGWA brief contends that if any releases to groundwater require NPDES permits, those releases should be limited to releases to groundwater that flows in identifiable channels or conduits. State water rights often depend on the distinction between percolating groundwater and groundwater in identifiable channels.
County of Maui, Hawaii v. Hawaii Wildlife Fund is likely to be argued this October. A decision is expected in early 2020.
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The Water Systems Council is the only national, nonprofit organization solely focused on household wells and small water well systems. WSC is committed to ensuring that Americans who get their water from household private wells have safe, reliable drinking water and to protecting our nation's groundwater resources.
The National Groundwater Association is a community of groundwater professionals working together to advance groundwater knowledge and the success of its members through education and outreach, advocacy, cooperation and information exchange, and enhancement of professional practices.