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hi welcome to another edition of ngw a podcast series industry connected today is an interesting conversation we're speaking with Jesse Richardson Jesse is a professor of law specializing in lead land use he's with the West Virginia University College of Law ambition Jesse represents the water systems Council last year we formed a partnership with water systems Council to file a joint amicus brief with the Supreme Court in the case of county of Maui versus Hawaii Wildlife Fund recently the Supreme Court issued their ruling Jesse's going to discuss their decision interpretate the decision what that means to the groundwater industry thank you I hope you enjoy hello my name is Ben frack and I am the public relations and regional policy manager for the national groundwater Association thanks for joining us today on n GW a industry connected today we will be talking about the Supreme Court case Maui County versus the Wildlife Fund a Supreme Court decision was recently passed down in this case and we will be we are lucky to be talking today to attorney Jesse Richardson Jesse Richardson is probably one of the country's if not the world's leaving land use and water law attorneys and we were also very lucky to have him help and be one of the main authors of our amicus brief that we filed with the water system counsel is not along with the national groundwater Association filed a friend of the court brief in this case how are you doing today sir thank you for having me here today I'm always excited to talk about interesting cases like the Maui County case it was a real thrill to be able to file an amicus brief in that case representing the national groundwater Association and water systems counsel great so if you wouldn't mind just giving you know our viewers and know those watching today just a quick brief about what was what was the crux of this case before the decision so it's clear that if you discharge pollutants directly into navigable waters you have to file you have to apply for and receive a national pollution discharge elimination system or NPDES permit you know that for example if you've got a pipe that runs into now the waters and pollutants are coming out of the pipe you need to get a permit when there were a number of cases out there where the pollutants were originating in a coal ash pond or something of that nature and they were being placed in the groundwater and then the groundwater would eventually make its way to navigable water and the question is do these interact discharges requiring NPDES permit the case before the court involved Maui County Hawaii putting wastewater into their injection wells which went down into the sand and the question was did they need a name right excellent and you know as I think you know we've mentioned anybody I'm following in GWAS progress in the water systems council progress on this case and this brief you know where we came down on this but could you give a brief description then on but what our main argument in our brief was you know against these potential permits and kind of siding with the Mountie county on this yeah water systems cancel in the National groundwater Association first we said these organizations are all about protecting the ground water ground water is essential to the occupations of the members on these two groups so we want to reject groundwater however we feel like the states are the best place to protect the groundwater and that states already have regulations in place to protect the groundwater so if for example and one of the issues in this case is how far does the reach if the court were to rule in a certain way maybe water wild contractors would need to get an NPDES permit indefinitely septic systems were in in the crosshairs and the court the justices talked a lot about septic systems during the argument and so we said two requiring yet another layer of regular regulation and permitting would be cost prohibitive and overly burdensome to water well contractors in that if the discharge was in an identifiable stream or channel it should be covered but if it's seeping into the ground through the groundwater it should not be covering could you tell me a little bit more about this overly burdensome argument or this undue burden what do you have to do much to display you know you have to give an actual cost or actual situations or hypothetical situations in your argument that shows that this would be a burden or do you basically just come from the point of obviously this is going to be another burden is it going to be another cause because it's done another regulation and could you just go a little bit deeper into what you need to do to argue that undue burden yeah well the first thing is it's an undue burden on the water well contractors because they would have to apply for these permits which could easily cost tens of thousands or hundreds of dollars depending on the situation and they would have to try to pass that cost one to homeowners and so private water wells but would become very expensive it would also be a huge burden on me EPA and the administrative agency because there would be hundreds of thousands of walls of septic systems that would have to be permitted and so that would overwhelm the agency we did not have precise calculations for what it would cost but I did have an example of a case the other cost would come into account what if the water well contractor did not get it from me what are the citizens suit provision the citizens for policy and so we didn't have a case where citizens and filed a lawsuit against water well contractors saying that they should have gotten a permit in another situation so it is within the realm of possibility for sure excellent and so tell me a little bit about you know I think from the from an GWA standpoint you know we have always been very strong supporters a you know many of the groundwater industry I have States controlling their own groundwater States having the right to control their groundwater and I guess do you see is what does that history come from about you know stays controlling their own groundwater and is is this a fight that is often or is this the first time the Supreme Court is kind of taking up something along these lines of you know questioning the state's role in groundwater management I think this is the first case that the Supreme Court has looked at the state's role in the groundwater management and it comes from the Clean Water Act from the very beginning of the Clean Water Act it was clear that the Safe Drinking Water Act covers groundwater the Clean Water Act covers surface water right and there's a lot of congressional history to that effect and a lot of that was argued before the court back in November and the structure of the Clean Water Act there are several sections like section 319 I believe in section 309 that specifically say States you're gonna handle non point source pollution handle groundwater and so that's where it comes from excellent that's very interesting so the other thing before we get to the decision can you talk about you know obviously we filed a friend of the court brief with the water system council can you talk about kind of where the other interested parties were honest you know I know that you there have been some environmental groups who were also kind of active on this case on the other side but can you tell me a little bit about how you know the other kind of interested parties and influences behind some of this yes there were a lot of environmental groups and I think it was mainly environmental groups on the other side their briefs were concerned about basically this being a loophole right and if county of Maui one then polluters instead of sticking the fight right over the navigable water all they had to do was put the pipe five feet back and it wouldn't be covered or just discharged into the groundwater not covered and in fact the justices brought that up several times during the oral argument so that was the other side that it would be a woo hoo for polluters if we didn't come down in favor of excellent so now let's get to this decision you know I know a couple things about this decision is one that has some people somewhat confused and two that it also took some people by surprise you know how some of the justices went on this I think took some folks by surprise so before we get into kind of the fallout from this decision can you give as concisely and as comprehensively as possible what the decision of the courts was in this case so the majority opinion in the court much like Neil oral argument said number one the fairly traceable test that the fund presented to the court is too broad it would cover everything and Chief Justice Roberts said during the world argument that the sciences submitted a brief and he was convinced that the sciences can't raise any pollution back to a point source he said it fairly traceable to broad but then they looked at County of Maui's tests proposed test which was essentially it has to be directly discharged into the water and the court said that to narrow it it would allow people to circumvent the statute and avoid liability by merely moving the pipe back a little bit basically environmentalists concerns were then echoed yes so the court kind of and some people have called this a Goldilocks opinion because no Hawaiian wildlife too broad no county of Maui too narrow we want it to be just right he and they came up with the functional equivalence test which means if the discharge is the functional equivalent of a direct discharge into the navigable waters then you need an NPDES permit so I guess that right there strikes me is the Supreme Court this you know judicial branch are they usually in the business of creating scientific groundwater test and you know measurements of this type of thing or is this something they do and ever or is this kind of from out of left field that's a great in the case involving water in the EPA are doing and the courts function really is to say your test is reasonable we'll take it if your test is not reasonable we're gonna send it back try again right because in my mice I guess I'm recalling my civics growing up it's the Supreme Court's position most time to interpret laws right and find them in Constitution or not that's not necessarily make them or point them in a different direction right yes correct so now a big question is with waters the United States and with the Maui County decision what if the EPA and the Corps and there's gonna be rulemaking they come up with a rule that's not what the court said in this way is the court still going to defer to the agency or does the agency have to do a rule that fits with what the majority did in this case that's very interesting and so let me let me touch back on one thing before we kind of go out further into the fallout of this decision was because I know I you know we brought it up in the brief and not in our brief and no and we taught and there was other consumer organizations and other waterwell associations and industry experts who are very worried about the undue burden on private well owners was that brought up much of this decision or was it mainly based on the science and then worried about these kind of loopholes it was brought up in the decision in the context of septic systems mainly generally in the majority opinion acknowledged that it said hey EPA has been doing this for years they know if you in the industry you can do that right the dissenting opinion there were justice Alito's dissenting opinion may or may not oh I guess you know what were some of the were some of the justices I know that I think I read maybe one of your your descriptions of this mate were somewhat there was some odd bedfellows in this and there was some kind of predictable couples could you go into those a couple of those surprises you saw yeah so the majority opinion was written by Justice Breyer and that was a huge surprise those Breyer it could have been the swing vote here he was not because Sotomayor Ginsburg Kagan the three liberal justices Breyer in the majority that's not a big surprise the big surprise is Chief Justice Roberts right justice Cavanaugh joining those four to make it a six to three decision Wow and was that I mean was it was it was there something about those two judges or was it mainly just that you know there's typically or they're viewed as these are conservative judges these are the more liberal judges I mean was where was it between Cavanaugh and the other just justice I'm sorry Chief Justice Ryan yes Chief Justice Roberts do they have any history of really you know going more in this direction whether it's from more environmental issues or scientific issues Chief Justice Roberts has a little bit of a history of this kind of sighting of the Liberals in some cases to me justice Cavanaugh was out of left field now some people predicted that I didn't see it but there it is yeah I mean that's interesting but it's also you know I think some people find it relieving to see that these judges don't always aren't always going to come down on you know the predicted side of liberal and conservative and that there's an actual you know you know independent thought you know definitely some judicial thinking that's going into this that's not conservative or liberal not really being liberal concerns right excellent so let's go to a little bit of the you know fallout of this decision one thing is I mean with these justices kind of making this play to create these new tests is it likely that this test and their their actions and this is there is there an avenue where this case could make or some form in this case can make it back to the Supreme Court or is there or is is basically going to be it for a while for groundwater be an issue the Supreme Court I don't think is gonna meet it I didn't like from the beginning that the court chose this case nothing about are the majority of the cases here for example there are several cases where they that was before the Supreme Court is a leaking pipe some people would say in this case tells us nothing period yeah I think I think we're gonna give it we have to get another coal ash pond case or in the court to look at that I think don't have enough guy right so is there a timeframe I mean on this for you know the new test or EPA to adopt some of these actions of the court suggesting I mean has there been discussions of you know when when policies in these tests may actually be implemented I mean winner professionals in these counties in these waters so I think we're probably and I think most probably wait a little while see how this case comes out see if the EPA does anything and then we can see a lot of services excellent great answer to that question so last thing I want to do or ask you about here before let you go you know there's been talk about legislative protocol legislative fix to some of this and legislative action to some of this but what would that look like in your in your head kind of if the water industry in the groundwater industry we're looking for clarification or any or maybe cliff occasion or other actions to kind of mediate this or kind of move this forward through legislation what do you think it what do you think's missing if anything what I think is missing is a clear congressional intent as to whether they want these types of discharges to require an NPDES permit I think that Congress has authority to come in and basically change some of these definitions what's a discharge from only a lawyer so Congress does have the power we all know so I really don't see it creating a solution I guess that brings me to another question not not fully remembering my civics growing up if Congress did pass that net were at odds with what the Supreme Court had requested and you know wants at the end of this decision how does that get sorted out Congress can basically overrule the Supreme Court so long as Congress stays within their constitutional but that's the only real appeal from the United States Supreme Court excellent excellent well sir that's going to do it for our questions today we'd first like to thank you for all of your work on your advocacy for the ground water industry especially in this case and beyond I know that you've be
n involved in a lot of cases in our industry helping out our members and our manufacturers everybody involved in the water industry here so first thank you for that and I really appreciate your time today well thank you I really enjoy working with the great people in the water oil industry excellent thank you so much thank you