Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.
In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.” The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.
Functional Equivalent Factors to Be Considered
Rather than laying out a bright-line rule as to when a permit should be required as the parties had argued in the case, the Supreme Court articulated a number of factors that are relevant to making the determination on a case-by-case basis. Time and distance will be the most important factors, with the Court providing alternate examples of where permitting would and would not clearly apply. “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies.” Conversely, “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”
To address cases that fall in between these two extremes, the Court also enumerated several additional factors. The opinion states that “the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels” may be relevant. Additional factors that may be relevant in specific instances include: transit time, distance traveled, the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, the manner by or area in which the pollutant enters the navigable waters, and the degree to which the pollution (at that point) has maintained its specific identity. The Court also elaborated that federal permitting determinations pursuant to the functional equivalent test should preserve state authority to regulate groundwater and other nonpoint sources of pollution.
Maui Facts and Prior Ninth Circuit Holding
The Maui case focused on the County of Maui’s management of wastewater effluent from its wastewater treatment plant. The County would treat sewage and then inject it into wells for disposal. Subsequent tracer dye testing revealed that well discharges were reaching the Pacific Ocean in approximately 84 days through groundwater. In February 2018, the Ninth Circuit issued its opinion providing a “fairly traceable” standard to require permits for discharges that were “fairly traceable from the point source to a navigable water.” The Ninth Circuit found that the tracer dye study and the County’s concessions proved that the fairly traceable standard was met. The County filed a petition for certiorari with the U.S. Supreme Court which the Court granted in February 2019, limiting the case to “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” The Court also deferred action in other appeals regarding the same issue.
In the opinion, the Supreme Court acknowledges the challenges of applying the “functional equivalent” test, especially in cases where time and distance are not determinative. The Court invites lower courts to provide guidance through decisions in individual cases, which is likely to open the flood gates to additional litigation on the issue. According to the Court, lower courts can also mitigate against any injustices associated with tests’ implementation by exercising their discretion under the CWA to invoke lower penalties. At the same time, the Court states that EPA “can provide administrative guidance (within statutory bounds)” including through granting “individual permits, promulgation of general permits, or the development of general rules.”
Justice Kavanaugh joined the majority but filed a separate concurring opinion emphasizing the consistency of the Court’s opinion regarding pollution “from” point sources with the interpretation set forth in Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U. S. 715 (2006). Justices Thomas (joined by Justice Gorsuch) and Alito filed dissenting opinions, criticizing the lack of clarity in the majority’s opinion. Justice Thomas would strictly adhere to the CWA’s text and would only require a permit when a point source discharges pollutants directly into navigable waters. Justice Alito’s dissent focuses on the lack of consistency which “invites arbitrary and inconsistent application.”
Although the Court’s opinion provides a general direction on a historically controversial issue, it will cause a significant degree of uncertainty for the foreseeable future. EPA may provide further clarity through guidance or a rulemaking, though such a rulemaking will likely be subject to additional legal challenges. In the meantime, we are likely to see a range of interpretations and applications of the Court’s factors across different EPA regions and states with lower courts subsequently applying varying weight to those factors.
The Court’s opinion does not appear to affect the Fourth Circuit’s 2018 decision in Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403 (4th Cir. 2018) which may provide one possible defense in any future challenges in the wake of the Supreme Court’s opinion. Even if a court were to find that a discharge through groundwater is the “functional equivalent” of a piped discharge applying the Supreme Court’s new factors, the Fourth Circuit provided in Sierra Club a possible defense that such discharges may nonetheless not originate from a “point source” and thus not be subject to NPDES permitting. In that case, the alleged “point source” was a large coal ash landfill which the Fourth Circuit found not to qualify as a point source.
For additional information regarding the Supreme Court’s opinion and its implications, please contact Brooks M. Smith, Andrea W. Wortzel, E. Fitzgerald Veira, Byron W. Kirkpatrick, Patrick J. Fanning, Ashley Cameron or Rich Pepper.