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Our Drinking Water and Water Bodies Prevailed in The Maui decision

When most of us think of Maui, we envision great weather, lush vegetation, tiki bars and beaches. The very last thing that comes to mind are sewer plants and the risks they represent if they are not regulated.

But the US Supreme Court’s recent and reasoned decision in County of Hawaii v Hawaii Wildlife Fund sheds a light on the risks posed by unregulated wastewater treatment. Its hard to see how we all did not dodge a bullet with this important ruling.

The case concerned the County’s sewage treatment facility. Many of these facilities treat human waste and discharge partially treated effluent into surface waters. These facilities are all regulated under the federal Clean Water Act which requires a permit that limits the quantity and kinds of “pollutants” that can be released into the navigable waterways. The term pollutant is very broadly defined.

This facility in Hawaii was a little different. Instead of discharging directly into the Pacific Ocean, which would have clearly been regulated under federal law, this facility discharged effluent into multiple wells. The discharged effluent from the plant then migrated through the groundwater such that it was ultimately released into the ocean.

In other words, there was not a direct release of the sewage facility effluent into the ocean, but rather an indirect but very traceable release.

The utility argued that it was exempt from the reaches of the federal Clean Water Act because there was no direct discharge into navigable waters. It argued it was immune from federal regulation because instead of discharging directly into the ocean the plant first discharged into the ground from which the effluent ultimately traveled.

Relying on this distinction, the sewage authority asserted that federal law did not govern and that it effectively could discharge whatever it wanted to without concern of federal regulation.

Fortunately, the federal District Court and the Ninth Circuit Court of Appeals did not agree with this position, in each instance ruling against the Sewage Authority. But the United States Solicitor General agreed with the sewage facility when the case went to the United States Supreme Court, arguing that because the effluent had to travel through the ground before entering the ocean it was not federally regulated.

Had the high Court agreed with that position it could have had far reaching impacts concerning which pollutants are regulated and which escape regulation. But that is not what happened.

The United States Supreme Court rejected the Solicitor General’s position and took what some have depicted as an environmentally protective position holding that because the discharge into the Pacific Ocean was fairly traceable to the sewage facility the sewage plant had to comply with federal law and had to meet permit conditions.

This is very important for the health of our water bodies, especially the oceans which are already under continuing pollution stress caused by the increasing amounts of plastic being introduced into them. The oceans are in real danger because of existing pollution threats, they clearly did not need any additional threats which an adverse decision in Maui would have created.

The local New Jersey impacts from this case are also far reaching. For example many proposed development projects rely on “package plants” for sewage treatment which sometimes discharge effluent into the ground. Now it is settled that they must meet federal Clean Water Act requirements as well as state and county requirements. There is no loop hole – these plants must meet federal requirements just as must every other sewage plant.

The connection between sewage effluent discharged into the ground and safe drinking water is clear and an adverse decision would have threatened our drinking water supplies as well as other natural resources. So we can all breathe and drink easier in New Jersey, for at least in this instance that risk has been curtailed as a result of this US Supreme Court decision.

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