Rules & Regs: US Supreme Court to Decide Groundwater Pollution Case

Also in this month's regulations update, a Massachusetts pilot project will fund alternative septic system installations

Rules & Regs: US Supreme Court to Decide Groundwater Pollution Case

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A case coming before the U.S. Supreme Court this year will look at a critical issue for people who deal with wastewater: whether or not regulations can be applied to groundwater carrying pollution from a point source.

The case is the County of Maui v. Hawaii Wildlife Fund, et al., and it came about because Maui County for years has pumped treated municipal wastewater into injection wells that carry it deep underground — or so everyone said. 

In 2011, the U.S. Environmental Protection Agency funded a tracer dye study that found wastewater from the wells flowing into groundwater and back into the ocean near Kahekili Beach where it was linked to algae blooms that smother coral reefs and cause other environmental damage. In 2018, the environmental law firm Earthjustice, which represents Hawaii Wildlife Fund, says the county’s Lahaina Wastewater Reclamation Facility injected 3 to 5 million gallons of wastewater daily.

A federal district court and the 9th Circuit Court of Appeals have heard the case already, and both sided with Hawaii Wildlife Fund and its request that Clean Water Act regulations should apply because the Lahaina plant is polluting the ocean. Now, the county is asking the Supreme Court for its opinion. 

“The case raises a really interesting and important question that implicates two separate areas of water pollution law,” says Erin Ryan of the Florida State University College of Law. She is an expert in water law and holds the Elizabeth C. & Clyde W. Atkinson professorship. “One is whether groundwater should be reachable by the Clean Water Act. The other question is how to deal with point and nonpoint pollution.”  

In the Hawaii case, these issues intersect, Ryan says. The difficulty is figuring out how to cope with pollution that is discharged from a point source but is contaminating regulated surface waters through a stretch of groundwater. “How should we think about the connections between surface water and hydrologically related groundwater,” Ryan says. “And what do we do about the sources of pollution that are really genuine threats to the nation’s waters but are conveyed by something not as easily attached to a point source designation, such as a factory pipe?"

More generally, the question is whether groundwater should be treated as connected to the nation’s navigable waters, which are regulated under the Clean Water Act, she says. 

When the Clean Water Act was written in the early 1970s, it specifically excluded some nonpoint sources such as many agricultural and forestry practices, Ryan says. Instead, lawmakers focused on pollution sources easy to clean up, such as pipes coming out of factories. Today, we’re figuring out how to deal with those remaining sources of pollution. 

In science, there’s no doubt groundwater is connected to other water. In the courts, however, that isn’t the case, Ryan says. A series of cases interpreting the language of the Clean Water Act and its regulations have set the stage for the current debate over how to view pollution moving from groundwater to surface water. 

Recently, in Rapanos v. United States, the late Justice Antonin Scalia and three other justices decided if there is no direct connection to surface water, then contamination of that waterway cannot be regulated under the Clean Water Act. Four justices on the liberal wing of the court say hydrology is the key, and if pollution is moved by some flow of water into a conventionally navigable waterway, then water all along that route is subject to regulation. Justice Anthony Kennedy wrote a separate opinion concurring with the result in the Scalia group and siding against regulation in that case, but Kennedy had a different line of reasoning. He says pollution questions should be decided case-by-case; if a hydrologic connection between a tributary and surface water pollution can be proven, then responsibility for the pollution can be assigned. The same analysis could apply to groundwater. 

Since that decision, however, lower courts have come up with other ideas that either generally link groundwater to surface pollution or reject any linkage. So the Hawaii case will become a way for the Supreme Court to suggest a uniform way to apply the law.

Because of the involvement of groundwater, it is possible this decision will reach the onsite world, as well as the municipal wastewater world. Federal regulations now differentiate between large-scale and small-scale discharges of stormwater, Ryan says. Something similar might happen with onsite systems. For example, if small systems are treated differently, a small onsite system on several acres might be exempt from regulation, but a subdivision in which every home is served by an onsite system might be considered a single source subject to regulation under the Clean Water Act. 

Brian Perry, a spokesman for Maui County, laid out the ramifications he saw if Hawaii Wildlife Fund prevails. 

“The county already has received an appeal from a South Maui condominium complex that seeks to avoid using recycled water because, in part, of fear of being exposed to a lawsuit,” he tells the local news website Maui Now. “If the (9th Circuit) court’s decision were allowed to stand, thousands of residents and businesses could be required to get National Pollutant Discharge Elimination System permits for recycled water irrigation systems, cesspools and septic systems.” 

It was the cesspool issue that occurred to Dennis Hallahan, technical director for Infiltrator Water Technologies and chairman of the Technical Practices Committee of the National Onsite Wastewater Recycling Association. A cesspool is essentially an injection well, he says. 

“Suffolk County, New York, is the biggest example of this as well,” he says. “They know they’re bad, and yet they cannot get rid of them.”

During the past couple years, the county and some of its municipalities passed new regulations banning new cesspools and requiring denitrifying onsite systems in order to reduce pollution of waters near the shore.

Hallahan says our resistance to chance is the biggest barrier to solving issues like these. We know some practices such as injection wells are bad, we know there is a connection among bodies of water, yet practices continue for decades.

Recent changes to the Supreme Court are making predictions in this case more complicated. Justice Kennedy retired. Scalia died. There are new personalities on the court, and that changes the court’s personality and clouds the crystal ball.

Amari Harley’s family reaches settlement with contractor

The family of a boy who drowned in a Jacksonville, Florida, park septic tank recently settled a lawsuit against a contractor involved in the incident.

Amari Harley, 3, was at a family outing and fell into an open tank and drowned on Oct. 22, 2017. Adults at the outing had lost track of him, and a police search discovered his body several hours later. Sheriff’s investigators later found keeping lids secured on the two tanks at Bruce Park was a continuing problem. 

Attorney Kay Harper Williams, who represented the family, did not disclose the terms of the settlement with ERS

Corp., also known as Environmental Remediation Services. The contractor was responsible for maintaining the wastewater system at the park. A separate suit against another contractor, A1 Septic Service Inc., was dismissed.   

Williams says the family is still suing the city for its role. It was unclear if that case will go to trial or will be settled out of court.

No one from the family or city commented to news media.

Lawsuits challenge Massachusetts housing complex’s wastewater system

A pair of lawsuits are challenging a planned housing complex on the grounds that its wastewater system is inadequate. The 24-unit condominium complex, including six units of affordable housing, is in South Dennis, Massachusetts, a community near the northward bend of Cape Cod. Both lawsuits target the Dennis Board of Health and say it should not have approved a special permit for the project because the onsite system fails to meet all local and state standards.

One lawsuit is on behalf of property neighbors, while the other is on behalf of commercial fisherman Stephen White who harvests shellfish from a nearby pond that connects to the Atlantic Ocean. White says in the lawsuit that additional nitrogen from the project will be detrimental to the fishery, according to the Cape Cod Times of Hyannis. 

His lawsuit says the pond is part of a watershed designated as nitrogen sensitive by the Massachusetts Department of Environmental Protection. The suit alleges nitrogen emissions from the complex’s onsite system will be 11.21 ppm, while the health board has a standard of 5 ppm.

Massachusetts pilot project will fund alternative septic system installations

The Massachusetts Alternative Septic System Test Center will receive a $25,000 state earmark to subsidize the installation of three more alternative septic systems in a pilot project. The Falmouth Water Quality Management Committee voted 5-2 in February to assign the funds, reports The Falmouth Enterprise newspaper.

Systems will go in watersheds close to meeting their total maximum daily loads and where municipal sewer is not recommended. Preference will be given to houses with three or more residents and to new construction. 

Tennessee bill could allow new septic systems despite moratorium

The Tennessee Legislature is considering a bill that would bring relief to people who want to build homes with septic systems but cannot because of a local moratorium on sewer connections.

The issue began in Hamilton County, which includes the city of Chattanooga. State concerns about discharges of raw sewage from the county wastewater plant (in one year, the plant released about 2 million gallons) led to a moratorium on sewer connections. 

But there is also a state law requiring people to connect to municipal sewer lines if they’re available. Rep. Patsy Hazlewood (R-Signal Mountain) tells the Chattanooga Times Free Press that as she understands the law: “If you’re in an area that's served by a sewer where there’s a moratorium, you can’t get a permit for a septic tank prior to the sewer being available.”

Hazlewood and Sen. Todd Gardenhire (R-Chattanooga) introduced bills in their respective houses to allow people to build and use onsite systems. In late February, legislators were working on the bills’ language so people would not be caught with a double expense — paying for an onsite system only to be told shortly thereafter that they must connect to municipal sewer because it was again available.

Virginia offers assistance to repair failing onsite systems

Residents of Albemarle, Fluvanna, Nelson and Amherst counties in Virginia are eligible for grants that may cover between 50 and 80 percent of the cost to repair or replace a failing onsite system. Financial help is also available to have tanks pumped.

Money comes from a grant from the Virginia Department of Environmental Quality to the Thomas Jefferson Soil and Water Conservation District. The goal was to reduce the levels of E. coli in the Hardware and Tye rivers. 

The grant was made three years ago, and assistance ends on Dec. 31. 

Maine considers expanding onsite inspection rules

There is another push in the Maine Legislature to extend state inspection rules for onsite systems to properties along the state’s lakes. State rules already require inspections of onsite systems along the seacoast when those properties are sold.

A similar bill passed the Legislature in 2017 but was vetoed by former Gov. Paul LePage.

Bruce Bates, director of the Maine Center for Disease Control and Prevention, tells the Committee on Environment and Natural Resources that more inspections are needed.

“Malfunctioning septic systems are a significant threat to public health and are often ignored by property owners,” he says, according to the Sun Journal of Lewiston. “Proper disposal of sanitary waste is one of our most effective methods of protecting the public from the spread of viral and bacterial disease-causing organisms.”

Andy Cashman, a Freeport attorney, tells lawmakers the Maine Association of REALTORS believes the state should not interfere because buyers are able to decide whether an inspection is needed.

The Hamptons to require denitrifying systems for new construction

New York's East Hampton Village Board voted in early February to require denitrifying onsite systems for new single-family homes and for construction that increases a home’s floor by at least 25 percent.

The village’s action follows those of Suffolk County and other county municipalities working to eliminate the cesspools that have provided wastewater treatment for decades. The county, which occupies the eastern tip of Long Island and includes the wealthy communities called the Hamptons, focused on cesspools because of near-shore water-quality problems that led to algae blooms.

Minnesota regulators push to address failing onsite systems

In a draft report, regulators say the state must address failing onsite systems and livestock waste in order to clean up the Minnesota River. Several sections are unsafe for swimming, and four sections of the river have been listed as impaired by E. coli since 1994.

The onsite part of the solution will require more frequent inspections of private systems and replacing systems that are out of compliance. Some systems consist of pipes that deliver untreated wastewater directly to surface water or onto the ground.


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