The Supreme Court heard arguments in November on the scope of the Clean Water Act.

WASHINGTON, D.C. — A case now before the United States Supreme Court will decide an important issue under the Clean Water Act (CWA), and could have a bearing on a case filed by our attorneys against Casella Waste Systems in New Hampshire.

The CWA prohibits the discharge of pollutants from a point source to surface waters unless the discharger has obtained and is complying with a permit. Under the Act, this is known as a National Pollution Discharge Elimination System (NPDES) permit. For 45 years, the United States Environmental Protection Agency (EPA) took the position that discharges from a point source—such as a wastewater discharge pipe—that reach surface waters through hydrologically connected groundwater are subject to this requirement. That’s common sense: The goal of the CWA is to prevent unpermitted discharges from point sources to surface waters, and it should not matter whether the pollution also passes through groundwater before it fouls surface waters. It’s also consistent with the conclusion of four members of the Supreme Court, in a plurality opinion authored by Justice Antonin Scalia, that the Act “does not forbid ‘the addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”

Under the Trump administration, however, the EPA has done an about-face. In a case pending before the Supreme Court, the agency has argued that companies and other dischargers are not required to obtain NPDES permits for pollution discharges that reach surface waters through the groundwater. The facts of that case are striking. The County of Maui, Hawaii, pumps sewage into underground wells, with the intention and knowledge that those wells convey the sewage through the groundwater into the Pacific Ocean. Yet Maui, and the EPA, argue that no CWA permit is required.

In a hearing held on Nov. 6, 2019, members of the Supreme Court expressed skepticism about this argument. Justice Brett Kavanaugh noted that it “sounds like the ‘directly’ argument that Justice Scalia’s opinion rejected.” Chief Justice John Roberts questioned whether running a discharge pipe through “any little bit of groundwater” would be enough to avoid CWA liability. And Justice Stephen Breyer characterized Maui’s position as a “road map for people who want to avoid the point source regulation,” noting that they could “cut off … the pipes … five feet from the ocean or five feet from the navigable stream.”

Meanwhile, NELC’s CWA case against Casella Waste Systems for the unpermitted discharge of landfill wastes to New Hampshire’s historic Ammonoosuc River is on hold until the Supreme Court issues its opinion in the Maui case, which is expected this spring. Although he acknowledged that the Casella case involves a different issue, U.S. District Court Judge Paul Barbadoro reasoned that the Supreme Court’s opinion might provide guidance that would be helpful in his disposition of our case.