In April of 2020 the Supreme Court of the United States answered a yes or no question with a maybe. The question: does a discharge to groundwater require a permit under the Federal Clean Water Act.

Both before and after the Supreme Court's decision, NGOs have brought citizen suits under the Clean Water Act alleging that the discharge of treated water from wastewater treatment facilities to the ground requires permitting under the Federal law.

The Supreme Court's equivocal answer to the question it was asked appeared to some to be a productive step because Justice Breyer, writing for the majority, identified seven factors to be considered by future courts in determining whether a particular discharge to groundwater was covered by the Federal law. The majority emphasized that the "time [for the discharged pollutants to get to a navigable water]" and "distance" would be the factors that would be "the most important in most cases."

The Court also predicted that lower courts would apply the factors identified to establish a body of case law indicating what was covered and what was not.

I was skeptical about how efficient that would be.

Earlier this year, a Massachusetts Federal Judge dismissed a lawsuit brought by the Conservation Law Foundation against the Town of Barnstable based on the Judge's consideration of the factors identified by the Supreme Court as "most important". In Barnstable, treated effluent that finds its way to groundwater takes over 21 years to travel the approximately 1.5 miles to the nearest Water of the United States. Of course during that journey the treated effluent becomes commingled with the groundwater and other things that have impacted that groundwater. The Judge determined there was no way that could be the functional equivalent of a discharge to a Water of the United States as contemplated by the Supreme Court.

CLF has asked the Judge to reconsider her decision and, if she doesn't, CLF will most certainly appeal to the First Circuit Court of Appeals. Among other things, CLF claims it is entitled to discovery before the strength of its case is tested.

I think CLF may very well win this battle on the way to losing this particular war.

And therein lies the true injustice of the current state of the law. Any recipient of a citizen suit notice, however flimsy, faces a choice between the high costs of defending himself, as the Town of Barnstable is doing here, or paying the ransom demanded by the would be plaintiff.

In the coming term the Supreme Court will take another bite at the Clean Water Act apple. Perhaps that decision will prompt Congress to finally provide the clarity regarding the reach of the Clean Water Act that everyone deserves.

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