In a stunning decision for nitrogen pollution—a decision that will affect Long Island Sound—the United States Supreme Court has declined to severely weaken the Clean Water Act.
The municipal sewage treatment plant operator who has been polluting Maui’s coastline—joined by a chorus of industrial polluters filing amicus briefs—had argued that pollutants in sewage could be discharged to surface water bodies without a Clean Water Act permit so long as they passed through some amount of groundwater before reaching the surface water body. The Supreme Court found that such discharges do fall under the jurisdiction of the Clean Water Act—which until last year had also been the position of the EPA.
Roger Reynolds, Save the Sound’s senior legal counsel, explains the case and what it means for the health of Long Island Sound:
County of Maui v. Hawaii Wildlife Fund
The case involved the reach of the Clean Water Act, which regulates discharges of pollutants from point sources (like factories or wastewater treatment plants) to surface waters (referred to as Waters of the United States). Groundwater, on the other hand, is generally regulated by the states. In the Maui case, a sewage facility discharged 4 million gallons of partially treated sewage a day, which then traveled for a half mile through groundwater before reaching the ocean.
The majority (Justices Breyer, Sotomayor, Ginsburg, Kagan, Roberts, and Kavanaugh) found that pollutants that were discharged to groundwater, but reached surface water such that they were the “functional equivalent of a direct discharge into surface waters,” were regulated by the Clean Water Act. Thus, the treatment plant could not avoid Clean Water Act jurisdiction simply because they discharged sewage to groundwater that flowed into surface waters rather than directly to surface waters.
The dissenters (Justices Thomas, Alito, and Gorsuch) argued that the Clean Water Act should be construed much more narrowly and that pollution to Waters of the United States should be unregulated so long as it passed through any medium, such as groundwater, for any distance, no matter how short, before it reached surface water. Fortunately that interpretation, which would allow substantial unregulated pollution of our waters, was shot down.
(It should be noted for clarity that while EPA recently published a rule weakening the definition of Waters of the United States as it applies to wetlands and intermittent streams, that definition was not the issue the Supreme Court was addressing in this case. Rather the Court provided an analysis of “direct discharge.”)
Campaign for a Sewage-Free Long Island Sound
This decision will have an immediate and direct impact on our campaign for a sewage-free Long Island Sound and allow us to resume our Long Island Sound nitrogen case in federal court.
That’s because nitrogen pollution discharged to surface water through groundwater is fouling Long Island Sound. Nitrogen pollution comes from both point and nonpoint sources, including sewage treatment plants, stormwater runoff and fertilizers, septic systems, and cesspools. Nitrogen from septic systems can reach groundwater and ultimately flow to Long Island Sound and surface water where it stimulates algal growth which in turn leads to low oxygen conditions, kills fish (through low oxygen and toxic algae blooms), and degrades coastal marsh. It also contaminates groundwater which is a significant source of drinking water. An inability to address these sources of pollution would severely set back Save the Sound’s efforts to clean Long Island Sound and ensure swimmable, fishable, drinkable waters for our whole region.
Baykeeeper and Soundkeeper v. Harvey
In 2013, the Long Island Soundkeeper and the Peconic Baykeeper brought a case against the New York State Office of Parks, Recreation and Historic Preservation alleging that the state parks were polluting Long Island Sound and violating the Clean Water Act by discharging sewage through groundwater into the Sound and other waterbodies from massive septic systems. The case is being heard in the United States District Court for the Eastern District of New York and both organizations are represented by attorneys in Super Law Group.
In February 2019, the Report and Recommendation of the magistrate judge denied the state’s request to dismiss the case on summary judgment and found the Clean Water Act claims should proceed to trial. That Report and Recommendation relied upon the earlier 9th Circuit Court of Appeals’ decision in the Maui case to find that pollution discharged to Long Island Sound and other surface waterbodies after passing through groundwater was actionable under the Clean Water Act so long as the pollution was “fairly traceable” back to the discharge. The court denied motions for summary judgment because there were disputed facts and found the Clean Water Act claims could proceed to trial. Then, however, the Supreme Court agreed to review the Maui decision, which the judge in our case had relied upon, and the court stayed our action pending the Supreme Court’s decision.
In light of the Supreme Court ruling, our case will now go forward and the court will make its final decision on the motions. We have done extensive testing and tracing of the pollution from the discharge point, through the groundwater, and to the surface water, and are confident we can prevail using that test.
Since the case was brought in 2013, there have been numerous discussions with NYS Parks in an attempt to reach a resolution that would protect Long Island Sound and other waterbodies. Although the case has already prompted NYS Parks to take important measures to reduce pollution—by closing all large-capacity cesspools in the parks, connecting two of the parks in our case to a sewage treatment plant, and installing urine separation systems in one comfort station in each of three parks—the case has not been resolved.
We believe we now have a fair standard under which to try the case and win. We also believe we have a strong basis to proceed with other cases against polluting wastewater systems to continue progress towards our ultimate goal of a sewage-free Long Island Sound.