On April 23, the U.S. Supreme Court decided County of Maui, Hawaii v. Hawaii Wildlife Fund, likely the most important environmental case on this year’s docket. Stakeholders hoped the Court would establish a bright line regarding whether the Clean Water Act applies to the discharge of pollutants that reach jurisdictional waters by migrating through groundwater.
However, the Court declined to lay down any clear rules. Instead, it found that the Clean Water Act requires a permit for a discharge to groundwater if the discharge is “the functional equivalent” of a direct discharge to navigable waters. Determining whether a discharge is the “functional equivalent” will depend upon a multi-factored balancing test. For permitting authorities, regulated industry, environmental groups, and district court judges, it may prove as frustrating as the Court’s splintered Rapanos decision concerning “waters of the United States.”
The County of Maui, Hawaii operated a wastewater treatment facility where it injected partially treated sewage into underground wells. The wastes migrated from the wells to groundwater and subsequently seeped into the Pacific Ocean. The Hawaii Wildlife Fund filed a citizen suit alleging that the county was discharging pollutants to a navigable water without a National Pollutant Discharge Elimination System permit under the Clean Water Act. The district court agreed, holding that a permit is required whenever the “path to the” navigable water “is clearly ascertainable.” The U.S. Court of Appeals for the Ninth Circuit affirmed but imposed a slightly different test, requiring the pollutants reaching the navigable water to be “fairly traceable” back to the point source. The Supreme Court, in a 6-3 opinion written by Justice Stephen Breyer, reversed and remanded the case to the Ninth Circuit.
For the Court, the question turned on the Clean Water Act’s definition of “point source” and specifically what it means for pollutants to be discharged “from” a point source. The Court rejected the Ninth Circuit’s “fairly traceable” standard and Hawaii Wildlife Fund’s suggestion that the standard requires a showing that the point source proximately caused pollutants to enter a navigable water. Proximate cause, the Court held, is a tort standard that provides no guidance outside of a specific context. It also deemed the “fairly traceable” standard to be overly broad in that it interfered with Congress’ clear intention to leave the regulation of pollutants in groundwater to the states, a limitation on Clean Water Act jurisdiction that must be respected. Further, the Court was greatly troubled by the notion that pollutants could take decades to migrate from a point source to navigable waters yet still be “fairly traceable” back to the point source.
The Court also rejected a bright-line test urged by both the county and the United States, acting as amicus curiae. They argued that the Clean Water Act applies only where a point source delivers pollutants directly to a navigable water; intervening groundwater or surface runoff would break the jurisdictional link. In support, they pointed to the Environmental Protection Agency’s (EPA) 2019 interpretive statement endorsing this view. The Court, however, declined to defer to EPA’s interpretation, finding that it lacked statutory support and would create a “loophole.” Citing a hypothetical scenario where a discharge pipe is intentionally positioned just a few feet from a navigable water, the opinion feared that a bright-line rule could allow crafty owners and operators to evade permitting requirements.
With both parties’ interpretations rejected, the Court established its own set of principles and factors as guidance. A point source will require a Clean Water Act permit for discharges to groundwater where those discharges are “the functional equivalent of a direct discharge from the point source into navigable waters,” meaning that “the discharge reaches the same result through roughly similar means.” To illustrate this precept, the Court included a series of factors for consideration on a case-by-case basis:
- the Clean Water Act’s purpose
- decisions should not interfere with state regulation of groundwater
- the time for migration to navigable waters and the distance traveled; as an example, the Court stated that a discharge traveling a few feet would require a permit, but a discharge traveling 50 miles would not
- the nature of the material through which the pollutant travels
- the extent to which the pollutant is diluted or chemically changed as it travels
- the volume of the discharged pollutant entering a navigable water as compared to volume of pollutants discharged by the point source
- the manner or area in which the pollutant enters the navigable water
- the degree to which the pollutant maintains its specific identity
The Court indicated that “[t]ime and distance will be the most important factors in most cases, but not necessarily every case.”
EPA guidance and lower federal courts will mold these factors into more concrete principles and examples over time. Further, the Court expressly suggested that district courts use their discretion to impose light civil penalties where Clean Water Act jurisdiction is a close call and a party could have reasonably believed that no permit was required.
The decision will require courts to re-examine the County of Maui case, along with several similar cases, in light of the Court’s multi-factored test. Those cases, along with future permitting decisions, EPA guidance, and enforcement actions, may lead to significantly diverging views, creating a need for further Supreme Court interpretation.
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