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June 21, 2019
The U.S. Supreme Court has agreed to hear what may be the biggest environmental cases of this year: a dispute over which types of pollution discharges trigger the Clean Water Act. The case County of Maui, Hawaii v. Hawaii Wildlife Fund involves the discharge of municipal wastewater into injection wells. The Family Farm Alliance is part of a group of eight national agriculture organizations that joined in an “amicus curia” (a Latin phrase meaning “friend of the court”) brief transmitted to the Supreme Court in in the spring.
The CWA governs the discharge of pollutants from discrete “point sources” into “waters of the U.S.” Environmentalists allege the County of Maui needed a CWA permit for the discharges, because the wastewater eventually seeped through groundwater and ended up in the Pacific Ocean. They argued that the CWA applies even when the pollution migrates through groundwater before reaching a waterway that is subject to federal jurisdiction. The Ninth Circuit Court agreed with the environmental groups in Maui.
The outcome of the Maui case has significant potential impacts on irrigators and other water users. If groundwater is considered a "conduit" to connected surface water for purposes of the CWA, then any water placed on the surface of the ground, that percolates into the ground, will be examined as a potential point source discharge of pollution. That could be canals, drains — even farms.
That’s why the Family Farm Alliance joined the ag-centric “amicus” effort being led by the American Farm Bureau Federation in the Supreme Court Maui groundwater case. This effort is intended to protect routine agricultural operations from a potentially limitless expansion of the CWA National Pollution Discharge Elimination System (NPDES) program.
In the brief, agricultural interests argue first that additions of pollutants to groundwater are not discharges of pollutants to navigable waters under the CWA.
Second, requiring permits for indirect additions of pollutants through groundwater would wrongly expand the reach of the CWA to ordinary and routine agricultural activities. These include fertilizer and pesticide applications, livestock feeding, irrigation, agricultural stormwater and farm ponds.
Requiring NPDES permits for groundwater discharges would be devastating for farmers and impractical for regulators. It would upend American food production to require NPDES permits whenever seepage or other additions to groundwater might end up in waters of the U.S. Ordinary farmers and ranchers would be unable to undertake the most basic agricultural activities without risking crushing fines, or assuming the high cost and long delays associated with obtaining NPDES permits.
The release of pollutants into groundwater is already regulated extensively by states and other federal laws. Unlike the NPDES program, state groundwater schemes are designed to protect groundwater from pollutants that enter through diffuse sources. Adding another ill-fitting and conflicting layer of CWA regulation could actually reduce protection for groundwater — the wrong outcome.
We believe plain statutory language and the CWA’s legislative history are clear. Additions of pollutants to groundwater, regardless of whether they later reach navigable waters, are not within the purview of the NPDES program.
We hope the Supreme Court agrees.
Keppen is executive director of the Family Farm Alliance.
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