Supreme Court Splits the Baby: A Multifactored Balancing Test to Determine When Clean Water Act Permits Required for Discharges to Groundwater

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.