Starved as we all are for some good news from anywhere these days, it was still surprising that it came out of the United States Supreme Court. In a victory for water quality and environmental advocates against the County of Maui in Hawaii, and supported by the Trump EPA, the Court found that the federal Clean Water Act applies to the discharge of pollutants to the ground where the pollutants would degrade surface waters. If that sounds familiar, it should. Groundwater on Cape Cod has a great influence on the quality of surface water, so this case is critically relevant to ongoing efforts to maintain local progress on wastewater management and water quality.
This decision preserves the clear and unmistakable jurisdiction of the Clean Water Act to activities that pollute and degrade surface waters. The ruling is critical because it upholds the ability of organizations like APCC and even average citizens to seek judicial enforcement of the law. This landmark ruling should be read by Cape Cod towns as a clear statement that the law still requires investment in water quality. Coming at a time when some towns are considering backing off from their water quality programs, this decision should make towns think twice before continuing to knowingly violate federal law.
Writing for the majority, Justice Stephen Breyer stated, “We conclude that [a permit is required] if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” It is not that this position is radical in and of itself; it reflects the general understanding of the Clean Water Act since its passage in 1972. What is surprising is that this was a solid 6-3 majority. Even more surprising is that included in the majority were Chief Justice John Roberts and Justice Brett Kavanaugh, as neither has a reputation of being a friend of environmental regulation. The rejection of the Trump administration’s evisceration of water quality protections in this case by conservative justices Kavanaugh and Roberts speaks volumes. Let that sink in a little.