Thursday, November 14, 2019
In Tuesday’s post, https://lawprofessors.typepad.com/agriculturallaw/2019/11/does-a-pollutant-discharge-from-groundwater-into-a-wotus-require-a-federal-permit.html, I discussed the three U.S. Circuit Court of Appeal decisions from 2018 involving groundwater discharges of pollutants and the Clean Water Act (CWA). The courts reached opposite conclusions on the issue of whether a CWA permit is required when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. Last week the U.S. Supreme Court heard oral arguments in the one case of the three decisions mentioned above from 2018.
The Court’s decision will be of monumental importance to agriculture. In today’s post, I take a look at last week’s oral argument and explain why agriculture should care.
Framing the Issue
In Tuesday’s post, I laid out the basic requirements of the discharge permit requirements of the CWA. To restate, the CWA requires a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of pollutants into the navigable waters of the United States (WOTUS) “from” a point source. The CWA (and the underlying regulations) defines a “point source” as a “discernable, confined, and discrete conveyance[s].” Discharges not fitting within that definition are nonpoint source discharges and are primarily left up to the states to regulate. The CWA also states that a “navigable” water is contained in a WOTUS, but groundwater is not.
In the case presently before the Supreme Court, Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), pet. for cert. granted sub. nom., County of Maui v. Hawaii Wildlife Fund, 139 S. Ct. 1164 (2019), treated wastewater from injection wells ultimately commingled with groundwater and dispersed in a manner that caused at least some of it to flow into the Pacific Ocean in a dispersed manner with no identifiable discharge point. This had been known to occur since at least 1973 and no federal permit had ever been required. An environmental group sued, and the trial court granted summary judgment to the group, finding that the indirect discharge of a pollutant into the ocean through a “groundwater conduit” constituted a point source of pollution, and that the CWA classifies groundwater as a “navigable water.” The U.S. Court of Appeals for the Ninth Circuit affirmed. The U.S. Supreme Court agreed to hear the case to clear up conflicting opinions on the issue by the Circuit Courts.
What Does “From” Mean?
Boiled down to its essence, the case turns on the meaning of “from.” As noted above, an NPDES permit is required for point source pollutants – those that originate “from” a point source that are discharged into a navigable water. But what if the pollutant originates from a point source, travels through groundwater, and then later reaches a WOTUS? Does the permit requirement turn on a direct discharge into a WOTUS, or simply a discharge that originated at a point source that ultimately ends up in a WOTUS? Clearly, the wells at issue in the case are point sources – on that point all agree. But, what about discharges from the wells that aren’t directly into a WOTUS? Are indirect discharges into a WOTUS via groundwater (which is otherwise exempt from the NPDES) subject to the permit requirement?
At oral argument last week, the federal Environmental Protection Agency (EPA) took the position that discharges into groundwater are excluded from the NPDES permit requirement. The defendant county also pointed out that the CWA distinguishes point source and nonpoint source pollution, and that including indirect discharges into a WOTUS via groundwater would eliminate that distinction and expose countless businesses (and, I would add, farmers) to fines of $50,000 per day based on an “after-the-fact” traceability analysis (i.e., whether the pollutant can be traced from a navigable water back to the point source). Justice Breyer along with Justice Kagan and Chief Justice Roberts seemed to reject the county’s rationale. But Justice Alito posited an example of a homeowner with a septic tank whose contents ended up in discharging into a WOTUS. Justices Breyer, Kavanaugh, Gorsuch and Chief Justice Roberts joined Justice Alito in expressing concern about the potential impact on such a homeowner. They seemed to reject the environmental group’s traceability test and/or proximate cause tests. Justice Breyer pointed out that “virtually every little drop of rain that falls finds its way to the sea” and that scientists are “geniuses” who “can trace all kinds of things.” Justice Kavanaugh expressed concern that if the position of the environmental group were adopted that the CWA’s regulatory balance between the federal government and the various states would be severely (if not entirely) tilted in the federal government’s favor.
Implications for Agriculture
The case is very important to agriculture because of the ways that a pollutant can be discharged from an initial point and ultimately reach a WOTUS. For example, the application of manure or commercial fertilizer to a farm field either via surface application or via injection could result in eventual runoff of excess via the surface or groundwater into a WOTUS. No farmer can guarantee that 100 percent of a manure or fertilizer application is used by the crop to which it is applied and that there are no traces of the unused application remaining in the soil. Likewise, while organic matter decays and returns to the soil, it contains nutrients that can be conveyed via stormwater into surface water. The CWA recognizes this and contains an NPDES exemption for agricultural stormwater discharges. But, if the Supreme Court decides in favor of the environmental group, the exemption would be removed, subjecting farmers (and others) to onerous CWA penalties unless a discharge permit were obtained - at a cost estimated to exceed $250,000 (not to mention time delays).
What about farm field tile drainage systems? Seemingly, such systems would make it easier for “pollutants” to enter a WOTUS. Such drainage systems are prevalent in the Midwest and other places, including California’s Central Valley. Should the law discourage agricultural drainage activities? Thus, a ruling upholding the environmental group’s position would dramatically change agricultural production. In addition, while large operations would be better positioned to absorb the increased cost of production activities, many mid and small-sized operations would not be able to adjust based simply on the economics involved.
What the case boils down to is whether the addition of a pollutant to groundwater that eventually reaches a WOTUS requires an NPDES permit. If so, an NPDES permit would be required whenever any type of seepage to groundwater might occur that could reach a WOTUS. That result is virtually always present with common agricultural practices, and an NPDES permit requirement for common agricultural husbandry practices would be most disruptive to food production in the United States. There is a reason that the Congress left the regulation of nonpoint source pollution up to the states rather than create a blanket rule requiring an NPDES permit in practically all situations. There is also a reason that Congress created an exemption for agricultural stormwater. Are those reasons legitimate? Do public policy concerns now override them?
In addition, a ruling in favor of the environmentalist group would certainly raise the issue of how the regulatory bureaucracy would administer such a massive expansion of the NPDES.
To agriculture, the definition of “from” is suddenly very important. Sometime next year, the “word peddlers” will tell us what it means.