The Supreme Court has decided to review a 9th Circuit decision finding the Clean Water Act applies to wastewater that travels through groundwater to the Pacific Ocean. The appeals court ruled on Feb. 1, 2018, that four wells for the main wastewater treatment plant for West Maui qualified as “point sources” under the CWA. Maui County and supporters, including water agencies from around the country, argued the ruling would open the doors to regulation of millions of sources that would have otherwise been unregulated. Farm groups have been watching the matter closely. In an amicus brief in the 9th Circuit, groups including the American Farm Bureau Federation and The Fertilizer Institute said the “conduit theory” — where groundwater is the conduit — “could open the door to claims of federal CWA liability for any pollutants released from the innumerable ‘point sources’ under (their) control that might eventually find their way to navigable waters, whether by groundwater, air, surface runoff, or other means. This could greatly expand the universe of potentially permitted sources.” Arguments likely will not take place until October. Case documents can be found here.
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