scales back scope of groundwater pollution ruling
MATEUSZ PERKOWSKI Capital Press
Groundwater will be regulated less strictly under the U.S.
Supreme Court’s new interpretation of the Clean Water Act
compared to an earlier legal standard affecting several Western
The nation’s highest court has rejected a more expansive
understanding of groundwater as a channel for pollution that had
been imposed by the 9th U.S. Circuit Court of Appeals.
For farmers and ranchers in the nine Western states under the
9th Circuit’s jurisdiction, the reversal of the appellate
court’s decision potentially reduces their liability under the
Clean Water Act — but experts say they still have plenty to
worry about with the new legal understanding of that statute.
“It’s better than it would have been had the 9th Circuit’s
decision stood. However, I’m skeptical as to how much better,”
said Damien Schiff, an attorney with the Pacific Legal
Foundation, which supports property rights.
While the Supreme Court didn’t consider groundwater to be as
direct a route for unlawful pollution as did the 9th Circuit,
it’s nonetheless regulated as a conduit in a way that may prove
problematic for agriculture, according to legal experts.
Farm organizations had hoped the Supreme Court would clearly
state that groundwater can’t serve as a “pipe” for pollution to
other waterways regulated under the Clean Water Act, said Norman
Semanko, an attorney representing irrigators with the Family
Farm Alliance nonprofit.
“It’s certainly a better test but it’s not a bright line rule,
which is what we advocated for,” Semanko said of the Supreme
The specific dispute that gave rise to the broader legal
controversy over groundwater pollution pertains to a facility on
the Hawaiian island of Maui, which injects partially-treated
wastewater into wells.
In 2018, the 9th Circuit ruled the wastewater facility is liable
under the Clean Water Act because pollutants seeping into the
Pacific Ocean were “fairly traceable” to the injection wells, or
the “point sources” of discharge.
Farm organizations feared that “basic agricultural activities,”
such as pesticide and fertilizer applications, would be subject
to lawsuits, penalties and expensive permits under this legal
The Supreme Court’s 6-3 decision, written by Associate Justice
Stephen Breyer, has now determined the 9th Circuit’s “focus on
traceability” vested the Clean Water Act with too much authority
In light of the “power of modern science,” the 9th Circuit’s
interpretation may require permitting even for “the 100-year
migration of pollutants through 250 miles of groundwater to a
river,” Breyer said.
On the other hand, the Supreme Court also rejected a competing
legal interpretation from the U.S. Environmental Protection
Agency, which argued the point source of discharge isn’t
regulated if pollutants pass through groundwater before reaching
a navigable waterway.
Breyer said this understanding was “too narrow” because it would
“risk serious interference with EPA’s ability to regulate
ordinary point source discharges.”
Under the EPA’s interpretation, polluters could simply move a
discharge pipe back “a few yards” so that it first travels
through “at least some groundwater,” thus opening a “large and
obvious loophole” that wasn’t intended by Congress, he said.
Instead, the Supreme Court has adopted a legal standard under
which Clean Water Act permits are required when there’s a
“functional equivalent of a direct discharge” — requiring an
analysis of the time and distance that pollutants must travel,
among other factors.
Compared to the 9th Circuit’s test, these criteria will require
a stronger link to the point source of pollution to establish
the need for a Clean Water Act permit, said Schiff of the
Pacific Legal Foundation.
“Even if you could trace it back, that doesn’t necessarily mean
there’s liability,” he said.
The ruling’s nationwide impact will particularly be felt by the
agricultural industry outside the 9th Circuit, which wasn’t
subject to the appellate court’s earlier ruling, said Semanko of
the Family Farm Alliance.
“The door is now open for arguments that discharges to
groundwater require a permit,” he said.
However, the opinion isn’t necessarily a reason to panic about
Clean Water Act liability, as agriculture will still keep
existing exemptions, such as for irrigation return flows,
Semanko said. “This decision doesn’t change that.”
In less clear-cut cases, though, determining whether a violation
has occurred may prove treacherous, said Tony Francois, an
attorney with the Pacific Legal Foundation.
“There’s not a formula that tells you: If it’s this far away,
then it’s not regulated. Or if the pollutants move this slowly,
it’s not regulated,” he said. “It depends on things that are the
hardest about groundwater to answer.”
The danger is that guidance from the EPA will be
“over-inclusive” and regulate more people than necessary,
Francois said. Meanwhile, testing the scope of Clean Water Act
authority under the new ruling will likely be tempting for
“That’s going to cost you a significant amount of money to
defend if you get a citizen’s suit like that,” he said.
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