SCOTUS will hear clean water case next term

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Posted at 11:00 AM, Feb 19, 2019
and last updated 2019-02-19 11:00:37-05

(CNN) -- The Supreme Court on Tuesday agreed to take up a case next term that relates to the Clean Water Act and the Environmental Protection Authority's authority to regulate pollutants that find their way into navigable water.

The EPA and courts have not issued clear guidance on this. Depending upon how the court rules, it could have big implications that could expand the government's ability to regulate.

The law protects navigable waters -- rivers, oceans and lakes -- from pollution. The question presented is whether it also covers pollution that has traveled some distance from a pipe or well through groundwater and made its way into navigable water.

"Although this case raises a technical question about the Clean Water Act, it has much broader implications for the scope of the Environmental Protection Agency's power to regulate pollutants that cannot be traced to a specific source," said Steve Vladeck, a CNN contributor and professor at the University of Texas School of Law.

"The justices had sidestepped that matter five years ago, but now seem poised to revisit, and perhaps rein in, the federal government's authority in such cases -- a ruling that could have major consequences for the scope of the EPA's jurisdiction," he said.

The case is brought by the County of Maui in Hawaii which owns and operates four wells at the Lahaina Wastewater Reclamation Facility, the principal municipal wastewater treatment plant for West Maui. The wells receive approximately 4 million gallons of sewage per day from a collection system that serves about 40,000 people. The sewage is treated and either sold for irrigation purposes or injected into the wells for disposal. Some of the treated wastewater in the wells eventually reaches the ocean. A lower court held that the county "discharged pollutants from its wells into the Pacific Ocean in violation of the Clean Water Act."

In its petitions before the Supreme Court, the county argued that the lower court incorrectly expanded the reach of the Clean Water Act and said that the "county and its taxpayers are unexpectedly faced with massive liability in fines" for failing to have the necessary permits.

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