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Supreme Court: Groundwater Discharges to Navigable Waters Require a Permit When ‘Functionally Equivalent’ to a Direct Discharge

April 23, 2020

Summary of County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.

No. 18-260, Argued 1/6/2019, Decided 4/23/2020)

Petitioner, County of Maui (“Maui”), operates a wastewater reclamation facility that partially treats water from the surrounding area, then releases roughly 4 million gallons of treated water into the ground through four wells. The effluent travels through ground water for one-half mile to the Pacific Ocean.

In 2012, environmental groups sued under the citizen suit provisions of the Clean Water Act (“Act”), alleging that Maui was “discharge[ing]” a “pollutant” to “navigable waters” without the required permit. The Ninth Circuit affirmed summary judgment for the environmental groups, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.”

The question presented to the Supreme Court: “[W]hether the Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, here, groundwater.” The Court answered: “[T]he statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

The Court rejected the environmental groups’/Ninth Circuit’s position. First, the environmental groups’ interpretation of “from” as “traceable” would allow for bizarre permitting in which EPA had jurisdiction over discharges that took years to reach a navigable water across hundreds of miles. This was not what Congress intended. Second, Congress intended to leave considerable responsibility and autonomy to states in regulating groundwater pollution, and states have developed these regulations. Third, legislative history cautions against this reading. Finally, longstanding regulatory practice undermines such a reading.

The Court then rejected Maui’s/Solicitor General’s position as too narrow and would allow a discharger to escape permitting requirements by simply “mov[ing] the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea.” This was also not what Congress intended. Maui’s “means of delivery” test looks to how the pollution got to navigable waters, not where it originated, and requires a permit only when the point source itself delivers pollution to the navigable water. Under this test, the groundwater is the means of delivery, not the pipe. This is an esoteric definition of “from” that does not fit with the Act’s context. The fact that “from a point source” is in the Act indicates the origin of the pollution is important. The Court also took issue with USEPA’s 2019 Interpretive Statement, which posited that all releases to groundwater are excluded from the CWA permitting program, and observed that USEPA’s interpretation was “neither persuasive nor reasonable.”

The Court ultimately held: “[T]he statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” “That is, an addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.”

Time and distance are the most important factors. “Where pollutants are released from a pipe and travel a few feet through groundwater (or over a beach), the permitting requirement clearly applies.” In contrast, “[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.” Other factors include the nature of the material through which the pollutant travels, the extent to which the pollutant is diluted or changed as it travels, the amount of pollutant entering the navigable water relative to the amount that left the point source, the manner by which the pollutant enters the navigable water, and the degree to which the pollutant retains its specific identity.

J Breyer authored the opinion for the Court, joined by C.J. Roberts, J. Ginsburg, J. Sotomayor, J. Kagan, and J. Kavanaugh. J. Kavanaugh authored a concurring opinion, and J. Thomas (joined by J. Gorsuch) and J. Alito each authored a dissent. The full decision can be read here.

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