The Latest from the Supreme Court on Point Source Pollution and the Clean Water Act

Mississippi Forestry Association's Tree Talk

Authored Article


A wastewater facility on the island of Maui, Hawaii, collects sewage, treats it, and pumps the treated water through underground wells. The water then travels half a mile, through groundwater, into the Pacific Ocean. Must the facility possess an EPA permit to do this? In April, the Supreme Court of the United States answered this question with a rather drawn-out "maybe."

For reasons that might not be obvious, this Supreme Court decision involving a facility that is located thousands of miles from Mississippi matters to our state's forestry industry. This is because, in deciding the Maui case, the Supreme Court expanded the EPA permitting requirement for point source pollution-at least as that requirement has been understood and interpreted by the federal courts that oversee federal law in Mississippi.

In the past, point source discharges into groundwater were understood (or assumed) to be outside the EPA's permitting regime. Discharges into groundwater have historically been regulated by state governments.

Now, point source discharges into groundwater require an EPA permit in some instances, creating new potential federal liability for landowners, mills, and others involved in forestry.
To understand the significance of the Maui case requires some basic familiarity with the Clean Water Act's terms. The Act forbids the addition of a pollutant from a "point source" into "navigable waters" without a permit from the EPA.

Republished with permission. The complete article, "The Latest from the Supreme Court on Point Source Pollution and the Clean Water Act," was published by the Mississippi Forestry Association in Volume 43, Issue III of Tree Talk.