County of Maui v. Hawai’i Wildlife Fund

Justice Ginsburg (47:01): Mr. Henkin, you have been asked in various forms the question that was put in the reply brief on page 11, and it is: Would you require permits for a toilet, an identifiable point source, that originates wastewater and foreseeably sends it to the county's wells? So how do you answer that?

Cristina Stella and Anthony Eliseuson: Homeowners would not be required to obtain a permit for their toilet under any of the tests the Court could apply. Under Respondent’s approach, homeowners would need a permit only if they would actually and foreseeably add traceable pollutants to navigable waters. Discharged pollution from toilets generally would not satisfy any of the three criteria: first, a toilet system that complies with all local permitting requirements would generally not be discharging pollution; second, a homeowner who complies with all local laws in installing a septic tank would have no reason to foresee any such impact and could act in reliance upon their belief that no permit was required even if it later turned out that they were mistaken; and third, pollution from an individual toilet would generally not be present in a traceable (i.e. more than de minimus) amount by the time it reached navigable water.

The practicality of our approach has already been proven by decades of bi partisan regulation in this field, which belies Petitioners’ concerns. Until 2019 EPA’s position was that point-source discharges to navigable waters through groundwater were covered by the Act, and EPA was able to regulate industrial polluters without imposing an overwhelming regulatory burden or unanticipated liabilities on homeowners. It would be both futile and impracticable for permitting authorities to use trader dye tests to spot-check individual toilets— and should they wish to regulate them, the Act’s general permit provisions exist to cover low-risk discharge activities. When we look past Petitioners’ fear-mongering, it’s clear to see that regulating a facility that discharges 3 to 5 million gallons of treated wastewater daily, into groundwater near the ocean shoreline, with full knowledge it will enter the ocean in large quantities in substantially the same form as it is being discharged, is a far cry from regulating toilets.