Science Wins the Day in Clean Water Act Groundwater Battle: Continued Vigilance Needed to Protect Water Quality

Policy Column

Drue Banta Winters | AFS Policy Director

It has never been more clear that science must play a key role in policy decisions impacting public health. Yet, the federal law charged with safeguarding our nation’s water, the Clean Water Act (Act), is under siege from all sides, with science in the crosshairs.

In April 2020, the Trump administration unveiled the “Navigable Waters Protection Rule” (NWPR), the final step in rolling back a science‐based definition for those waters subject to the Act’s jurisdiction. As anticipated, the rule narrowly defines “Waters of the United States” and removes protection for millions of stream miles and acres of wetlands that keep waters and watersheds healthy. The new rule threatens water quality and quantity and undermines public health at a time when communities that are plagued by pollution and lack access to safe drinking water are disproportionately impacted by COVID‐19.

To make matters worse, the U.S. Environmental Protection Agency has made significant changes to Section 401 of the Act that would dramatically limit longstanding state and tribal authority to ensure that projects move forward with protective conditions to minimize damage to fisheries, water quality, wetlands, and access to cultural and recreational resources.

Fortunately, the Act survived a significant challenge in May 2020 with the U.S. Supreme Court’s 6‐3 decision in County of Maui v. Hawai‘i Wildlife Fund . Relying heavily on aquatic science, the Court closed a major loophole for polluters to evade the Act’s jurisdiction. The court rejected the County of Maui’s attempt to categorically exclude pollutants conveyed through groundwater from the scope of the Act. Instead, it ruled that a permit is required when a discharge, like one into groundwater, is “the functional equivalent” of a direct discharge into navigable waters.

In 2012, the Hawai’i Wildlife Fund sued the County of Maui, contending it was violating the Act, because it had never sought a National Pollution Discharge Elimination System permit for the Lahaina Wastewater Reclamation Facility’s effluent disposal system. The county pours millions of gallons of treated sewage into underground injection wells, which travels through groundwater before entering the Pacific Ocean. A tracer dye study confirmed these facts.

The Act prohibits the discharge of pollutants from a point source into navigable waters without a permit. Maui County argued that if a pollutant from a point source, like its wells, reached groundwater, a non‐point source, and discharged into navigable water, the pollutant was no longer discharged by a point source, and thus, not subject to the Act. The U.S. Court of Appeals for the 9th Circuit ruled against the county, who then brought the case to the Supreme Court last year.

The American Fisheries Society joined with a number of science societies and aquatic scientists in a brief to the Supreme Court in support of Hawai’i Wildlife Fund, which explained the hydrology of groundwater, its importance to water quantity and quality, connectivity between point sources, groundwater and surface waters, and pathways for pollution dispersal. The brief set forth the scientific methods used to estimate and empirically quantify the magnitude and timing of groundwater connections between point sources and surface waters, including physical measurements, chemical tracers, and groundwater models. The brief explained how these tools are used to determine if, and to what extent, pollutants discharged from point sources contaminate surface waters through groundwater. We argued that the “Act’s mandate of restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters is based on science and thus can only be achieved through the consideration of science.”

The court took heed of the science. Our brief informed oral arguments and was ultimately cited in the opinion. What a win for science and for clean water!

Long before this pandemic, AFS was working to help policymakers understand that impaired water quality threatens both fish and human health. Thanks to the willingness of our members to share their expertise and their continued diligence, AFS has been actively working for science‐based water quality policies for many years. Indeed, we were actively involved in advocating for a science‐based Waters of the United States rule in 2015. Over the last year, in conjunction with our partners in the Consortium of Aquatic Science Societies and conservation groups, AFS has detailed the impacts of a narrower NWPR rule and the Section 401 rule in regulatory rulemakings, conducted Capitol Hill briefings on the impacts of the NWPR rule to fish and fisheries, shared published literature with members of Congress and their staff on this and other water quality issues, and joined with other aquatic science societies in amicus briefs to federal courts.

Advocating for science‐based policy is one of the many critical programs managed by AFS. In the midst of today’s uncertainty, rest assured that for us the work continues. It is imperative that we remain vigilant in the fight for clean water that is so critically important for healthy fish and healthy humans. I encourage you to look to ways that you can join us in the conservation and stewardship of our environment and natural resources. It is a cause worth championing.