Pollution precedent

In a ruling last month that could have implications for agriculture, the U.S. Supreme Court determined that indirect pollution reaching rivers, lakes, oceans and other navigable waters may fall under jurisdiction of the Clean Water Act.

The decision came in a closely watched case from Hawaii about whether a sewage treatment plant needs a federal permit when it sends wastewater deep underground instead of dis­charging the treated flow directly into the Pacific Ocean. Studies found the wastewater reaches the ocean and has damaged a coral reef near a Maui beach.

The Clean Water Act prohibits the discharge of “any pollutant to navigable waters from any point source” without a permit. Typically, sewage plants and other such industries must get a permit under the CWA when their pollutants go through a pipe directly into a body of water. The question in this case was whether a permit is needed when the pollutant first passes through the soil or groundwater.

Justices held by a 6-3 vote that industries cannot avoid com­pliance with the CWA by discharging polluted water into the ground rather than directly into waterways.

“We hold that the statute requires a permit when there is a di­rect discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge,” Justice Stephen Breyer wrote for the court.

The ruling vacated a Ninth Circuit decision that said a permit was required if such pollutants were “fairly traceable” to a point source. According to the lower court, the groundwater served as a conduit to transport the pollutants into navigable water, making it no different than discharging directly into the ocean. Agricultural leaders had expressed concern that, under this definition, farms could be subject to permitting requirements and enforcement if pollutants were “fairly traceable” to their operations.

Asserting that the Ninth Circuit’s interpretation was too broad, the Supreme Court concluded that time and distance would be crucial factors in determining which discharges into groundwater would be the “functional equivalent” of direct discharges. Ag­riculture industry leaders say the ruling may still expose farmers and ranchers to Clean Water Act violations as they relate to groundwater, with the potential to affect everything from field-tiling systems to manure stored in waste lagoons.

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