Supreme Court to weigh in on Clean Water Act dispute from 9th Circuit

The U.S. Supreme Court has agreed to hear a far-reaching environmental dispute testing the limits of a federal law prohibiting companies, individuals and local governments from polluting navigable waters.

On Tuesday, the justices announced they would review a decision from the 9th U.S. Circuit Court of Appeals issued last year that held the Clean Water Act makes it illegal to contaminate such bodies of water through indirect sources. County of Maui, Hawaii v. Hawaii Wildlife Fund, 18-260.

For years, federal courts have been applied the 1972 law to ban the direct dumping of pollutants into oceans, rivers and lakes.

But the 9th U.S. Circuit Court of Appeals said last year the act also covered a Hawaiian sewage plant that deposited liquid waste in wells. Polluted water stored in the wells traveled underground into the nearby ocean, Senior Judge Dorothy W. Nelson noted in her unanimous opinion, meaning the pollutant could be traced to a direct point of contamination and was covered by the act.

Environmental groups that filed the lawsuit in 2012 said the plant in question was responsible for millions of gallons of treated wastewater that seeped into the Pacific Ocean every day.

Attorneys for the County of Maui have characterized Nelson's opinion as overreaching.

"This holding expands CWA permitting to millions of sources previously regulated as nonpoint source pollution," wrote Michael R. Shebelskie, a partner at Hunton Andrews Kurth LLP, in Maui's August petition for review.

Nelson's opinion gained traction two months after it published when the 4th U.S. Circuit Court of Appeals cited it in a case from South Carolina involving an underground gasoline pipe that burst in 2014. Using the 9th Circuit's opinion as a guide, the 4th Circuit said the pipeline's owner, Kinder Morgan Inc., violated the act when more than 369,000 gallons of gasoline seeped through groundwater into nearby lakes and rivers. A certiorari petition is pending in that case.

In September, the 6th U.S. Circuit Court of Appeals rejected its sister circuits' interpretation of the law, saying the text of the Clean Water Act only applied to direct dumping.

But attorneys for environmental groups that sued Maui over its Lahaina Wastewater Reclamation Facility say there's nothing wrong with the 9th Circuit's reading of the law.

"[The] decision follows the Rapanos plurality's recognition that the CWA's plain language broadly forbids all unpermitted point source discharges 'to navigable waters,'" Earthjustice attorney David L. Kenkin wrote in an October brief, citing a 2006 opinion written by the late Justice Antonin Scalia.

U.S. Solicitor General Noel Francisco filed a brief in the case at the request of the justices, siding with Maui's argument that the high court should take the case. He noted the Environmental Protection Agency is considering whether to change regulations on this very issue.