Rules and Regs: Hawaii Groundwater Case Draws Wide Interest

Also in this month's update, a district judge denies Amish proposal in battle to escape wastewater rules in Minnesota

Rules and Regs: Hawaii Groundwater Case Draws Wide Interest

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Oral arguments before the U.S. Supreme Court are set for Nov. 6 in a water pollution case that could reshape the regulation of wastewater, including onsite systems. That potential for change means a large number of organizations have opinions about why the justices should rule one way or the other.

In dispute is whether pollution from a point source can be regulated under the Clean Water Act if it first passes through groundwater. The county of Maui, Hawaii, for years has used deep injection wells to dispose of its treated wastewater. Some of that effluent moves through groundwater and into the Pacific Ocean. This led the Hawaii Wildlife Fund and other conservation groups to file a federal lawsuit asserting that the county’s discharge violates the Clean Water Act. A federal district judge ruled that it does and the 9th Circuit Court of Appeals in San Francisco upheld that ruling, so the county appealed to the Supreme Court.

The Hawaii case combines two continuing and important questions in law that Erin Ryan, a law professor at Florida State University, brought up to Pumper in February. One question is whether groundwater can be reached by law, and the other is how to deal with point and nonpoint sources of pollution.

She says the two questions ask: How should we think about the connections between surface water and hydrologically related groundwater, 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?

The Clean Water Act was drafted to exclude some sources of pollution, such as agriculture, Ryan says. Instead, lawmakers focused on pollution sources easy to clean up, such as pipes coming out of factories.

In the run-up to the November hearing where attorneys for the county and conservation groups will argue the case before the Supreme Court, interested groups submitted friend of the court (amicus curiae) briefs. These written arguments come from organizations or individuals who have an interest in the outcome of a case but are not parties to it.

Among the groups supporting Maui County’s position with a brief is the National Association of Home Builders, which worries that extending the reach of the Clean Water Act will have a negative effect on the regulation of onsite systems and the business of its members. West Virginia, joined by 19 other states and the governors of Kentucky and Mississippi, argues that state sovereignty is at risk and says the current division of water regulation between state and federal governments offers better protection because federal power can be used when necessary, while states can adjust solutions to meet complex local problems.

The U.S. Chamber of Commerce says while businesses support effective environmental regulation, applying the Clean Water Act to groundwater will create a mess of duplicate regulations and impose a burden on the public. The American Farm Bureau Federation and other agricultural interests are concerned that farming will be adversely affected because there is no way to prevent excess fertilizer from being picked up by stormwater and diffused into groundwater.

Among the groups supporting the position of Hawaii Wildlife Fund are 13 states and the District of Columbia. They ask the Supreme Court to rule in favor of Hawaii Wildlife because nothing in the Clean Water Act says point sources must discharge directly to a body of water if they are to be regulated.

Trout Unlimited says the county’s position is clearly at odds with what the law says and if upheld would roll back important protections for the nation’s fisheries, along with the economies and people they support.

Meanwhile, the Fond du Lac Band of Lake Superior Chippewa worry about the quality of water that supports the wild rice and fish that tribal members eat, and write that the Clean Water Act already says pollutants can’t be added to waters without a permit.

The craft brewers say Maui County’s argument is simply flawed. If pollution moving through groundwater were to be exempt from the Clean Water Act, the group writes, then any factory discharging into a river could escape regulation by shortening its pipes by 20 feet and dumping pollution into a gravel pit so groundwater would carry the pollution into the river.

District Judge Denies Amish Proposal in Battle to Escape Wastewater Rules

A district judge recently denied a request from four Amish men to amend his ruling or grant them a new trial in their long battle to escape Fillmore County, Minnesota, wastewater rules.

While Minnesota law exempts outhouses from its pollution control laws, it does not exempt graywater. The county took the Amish men to court because they refused, on religious grounds, to install septic tanks for their household graywater. But in his ruling at the trial, Judge Joseph Chase says the Amish rejection of septic tanks puts the health of their neighbors at risk, and the health of their neighbors outweighs their religious beliefs.   

The four men are expected to next take their case to the state Court of Appeals.

New Hampshire to Require PFAS Testing and Treatment

In July the state of New Hampshire adopted a rule requiring local landfills and water and wastewater plants to test for and treat for four per- and polyfluoroalkyl substances. The Legislature’s Administrative Rules Committee approved the new limits on a vote that split roughly along party lines, according to New Hampshire Public Radio.

PFAS is an umbrella term for a category of chemicals used in a wide variety of products from stain-resistant coatings to firefighting foams. Although some are no longer produced, the chemicals are persistent in the environment.

The New Hampshire rule sets limits of 12 ppt for perfluorooctanoic acid (PFOA), 15 ppt for perfluorooctane sulfonate (PFOS), 18 ppt for perfluorohexane sulfonate (PFHxS) and 11 ppt for perfluorononanoic acid (PFNA).

Research on the effects of PFAS is not complete, but results so far suggest that high concentrations in humans may increase cholesterol levels, decrease response to vaccines, increase risk of thyroid disease, decrease fertility in women and increase the risk of high blood pressure or preeclampsia in pregnant women.

The PFAS issue also extends to the onsite industry. In June, the state notified Biological Recycling Co. — which processes septage and land-spreads sludge — that it is the likely source of PFAS contamination in wells on neighboring properties.

A news report says tests of four drinking-water wells found combined concentrations of PFOA and PFOS ranging from 83.5 ppt to 174.8 ppt. The state limit for these two chemicals in groundwater is 70 ppt (also the federal standard), but officials of the state Department of Environmental Services suggested those limits should be lowered to match the new rule for water and wastewater plants.

Michigan Tribe Asks for Control Over Its Water Quality

The Keweenaw Bay Indian Community on the shore of Lake Superior in Michigan is petitioning the federal government to give it control of quality standards for its bodies of water. If granted this authority, it would become the first Michigan tribe with this power, according to Capital News Service.

In its petition to the U.S. Environmental Protection Agency asking for the power, the tribe writes that “pollution of waters within the reservation boundaries is a threat to the political integrity, the economic security and the health and welfare (of the tribe).” The petition lists septic systems as a threat to water quality along with development, agriculture, forestry and other activities.

The Clean Water Act allows tribes to have power over their local environment. A tribe in New Mexico exercised that authority to require less pollution from the city of Albuquerque in the 1990s, and a tribe in Wisconsin used its authority to fight a mine project that threatened the water supply for wild rice.

New Hampshire Couple Takes City to State Supreme Court

Two people are going to the New Hampshire Supreme Court with a complaint that they were harmed when the city of Concord failed to keep accurate records of wastewater disposal for their property.

James and Kath Marhan say their home was listed in the city of Concord assessment system as being connected to the sewer system when they bought it in 2003, and they were billed for service, reports the Concord Monitor. But in 2015, wastewater started backing up into their home. They discovered the house was connected to a metal septic tank in the backyard, and the tank had collapsed.

The couple hired a local company to install a replacement tank, but they were required to connect it to municipal sewer at their own cost. The couple asserts the city had a duty to maintain accurate records, and the city’s failure to do so caused them harm.

A lower court judge dismissed their claim in March after the city said it was immune from damages. The city’s attorney argued the couple’s complaint did not meet the requirements of state law, and he argued that the couple should have verified the wastewater service on their own.

Ohio County to Require Property Division Inspections to Prevent Septic Cutoffs

Richland County, Ohio, is on the verge of enforcing new rules for onsite systems. County health inspectors will be required to review all property divisions of less than 5 acres to see whether they are suitable for septic systems, reports the Mansfield News Journal.

Property owners will have to file a formal application for a land division and have a soil evaluation performed.

“The reason why this program is so important is because individuals have been splitting off parcels and cutting off their septic systems,” says Heather Decker, sanitarian. “It’s an insurance policy so they’re not affected in the future.”

The county is in central Ohio, about halfway between Cincinnati and Cleveland.

Shelter Island Public Buildings to Consider Unified Onsite System

Four public entities on Shelter Island, New York, will explore a unified onsite system to reduce nitrogen pollution along the shore of the Atlantic Ocean.

John Cronin, the town engineer, planned to submit an application to the state for funding for an engineering study, according to the Shelter Island Reporter.

The Shelter Island School, Fire Department, town complex and Legion Hall are all interested in joining a cluster system. If the Fire Department opted out, Cronin told fire commissioners at a meeting in late July, it would still have to replace its onsite system at some point, and building an individual replacement system would be more expensive than contributing to a unified system.

Cronin says an engineering study could be started by January and a plan could be in place by the fall of 2020.

Shelter Island is part of Suffolk County on the eastern end of Long Island.

Iowa Couple Sues County Over Installation Issues

A Grundy County couple in Iowa is suing their county and its insurer, the board of health and a county sanitarian for what they say was improper installation of a septic system on their property.

Greg and Lisa Melcher filed the suit in April. They say E. coli in their water caused Lisa gastrointestinal illness after the system was installed, reports The Grundy Register.

In their lawsuit, the Melchers allege the county approved a permit without requiring a perc test, approved a drainfield inconsistent with state code, failed to inspect sites before issuing permits and failed to show competence in licensing installers.

The suit also says the county was negligent in hiring the sanitarian, failed to supervise her properly and ignored warnings about the failure of the Melchers’ system after it was installed in 2017.

Wisconsin’s Washington County Considers Annual Onsite System Fee

Washington County, Wisconsin, planned a public hearing in late July about charging an annual fee to owners of private onsite systems. Proceeds from the fee would be used for tracking the systems, according to the Washington County Insider.

About 20,000 parcels would be charged $11 annually, and about 100 others would be charged fees from $22 to $66 depending on how many onsite systems are located on each property.

Washington County is northwest of Milwaukee and contains some of the city’s outer suburbs.

Suffolk County Officials Create Long-Term Nitrogen Reduction Plan

Officials in Suffolk County, New York, have developed a long-term plan to reduce nitrogen pollution in surface waters. The Subwatersheds Wastewater Plan would last more than 50 years and proposes a countywide wastewater management district and a new and unspecified source of revenue, reports the newspaper Newsday. Beginning in 2024, that money would provide grants and loans to homeowners.

A county press release says the study identifies more than 180 watersheds in the county and establishes nitrogen-reduction goals for them. The plan also sets priority areas where the replacement of cesspools will have the most immediate benefit. Overall, the plan proposes investing $2.7 billion during those 50 years to eliminate 253,000 cesspools.


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