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.
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