WASHINGTON _ The Supreme Court bolstered the nation's clean water protections for oceans and beaches on Thursday, ruling that environmentalists can sue to block discharges of sewage into the ground if those pollutants flow in significant amounts from there into the ocean.
In a 6-3 ruling, the high court said the Clean Water Act forbids not only direct discharges of sewage or other pollution into the ocean or bays, but also their "functional equivalent," if it is shown that sewage is ending up along the beaches.
The justices upheld lawsuits from four environmental groups in Hawaii who had sued over sewage that was flowing from treatment plants through the ground water and into the ocean off Maui.
The county of Maui, with the support of the Trump administration, appealed to the Supreme Court, arguing that the Clean Water Act protected only against "direct discharges" of pollutants into waterways and not pollution from ground water.
Justice Stephen G. Breyer, speaking for the court, disagreed in County of Maui v. Hawaii Wildlife Fund. "We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters," he said.
Time and distance are key factors, he said, in deciding whether pollution flowing through the groundwater can be attributed to a treatment facility.
His opinion did not go as far as the 9th Circuit Court, which had decided that the law's permitting rule applies to any water pollution which is "fairly traceable" to pollution flowing into the ground. That goes too far, Breyer said, because it could extend to 650,000 wells and 20 million septic tanks nationwide, most of which are distant from a river or bay.
But the court's rule should cover significant discharges of pollutants that flow into the groundwater.
"This decision is a huge victory for clean water," said David Henkin, an attorney from the environmental public interest group Earthjustice who argued the case. "The Supreme Court has rejected the Trump administration's effort to blow a big hole in the Clean Water Act's protections for rivers, lakes and oceans."
The high court remanded the case back to the 9th Circuit to apply the new standard.
The county of Maui operates a wastewater reclamation facility on the island of Maui, Hawaii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water through four wells hundreds of feet underground. This effluent, amounting to about 4 million gallons each day, then travels a further half mile or so, through groundwater, to the ocean.
At issue was whether the county could be sued for failing to obtain a clean-water permit before discharging this pollution into the ground.
The Environmental Protection Agency under President Obama had supported the environmentalists when the suits were before a judge in Hawaii. But the Trump administration changed sides and supported the county in its effort to limit the reach of the law.
Joining Breyer's opinion were Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.
The ruling applies not just to oceans, but to waterways across the country, and it could pose problems for the operators of wastewater treatment plants. A coalition of California water agencies had urged the court to reverse the 9th Circuit and rule the Clean Water Act did not extend to pollution from groundwater.
Michael Kimberly, a Washington lawyer who filed a brief on behalf of agricultural business organizations, said the court's new rule "is amorphous and leaves much to be desired. It leaves countless responsible landowners potentially liable for discharges from 'point sources' to 'navigable waters' that aren't actually anything of the sort. I would hope and expect an EPA and Army Corps of Engineers rule-making to elaborate the standard in more concrete terms, which the opinion expressly invites."
