On April 23, the Supreme Court of the United States issued an opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., where the Court held that, in limited circumstances, a party discharging pollutants into groundwater that ultimately end up in navigable waters will need a permit under the Clean Water Act.
By way of background, the Clean Water Act forbids the “addition” of any pollutant “from any point source” to “navigable waters” without a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1362(12)(A); see also 33 U.S.C. § 1342 (NPDES provisions). In Maui, the Court concluded that an NPDES permit is required where the addition of the pollutants through groundwater is the “functional equivalent” of a direct discharge from the point source into navigable waters.
The petitioner, the County of Maui, operates a wastewater reclamation facility that collects sewage from the surrounding area, partially treats it, and pumps the treated water through underground wells. This effluent then travels approximately a half mile, through groundwater, to the Pacific Ocean. In 2012, environmental groups brought a Clean Water Act citizen suit against Maui, claiming that Maui was “discharging a pollutant to navigable waters” without the permit required by the Clean Water Act. Both the district court and Ninth Circuit held that a permit was required. In doing so, the Ninth Circuit reasoned that such a permit is required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.”
The Supreme Court vacated the Ninth’s Circuit decision by a 6-3 vote. Citing the statute’s language and structure, legislative history and intent, and longstanding regulatory practice related to the Clean Water Act, the Court rejected the Ninth Circuit’s “fairly traceable” test as being too broad. For instance, the Court noted that the Ninth Circuit’s test would require a permit in “bizarre” circumstances, such as for pollutants carried to navigable waters on a bird’s feathers. Further, the Court emphasized that the structure of the Clean Water Act indicates that Congress intended to leave substantial responsibility and autonomy to the States in the area of groundwater pollution and non-point source pollution.
On the other hand, the Court also rejected Maui and the Government’s argument that the Clean Water Act’s NPDES permitting requirement does not apply if a pollutant, having emerged from a point source, must travel through any amount of groundwater before reaching navigable waters. According to the Supreme Court, that interpretation was too narrow because it would allow point source dischargers to evade the permitting requirement.
The Court then set forth a new, middle-ground standard by holding that the Clean Water Act 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.” The Court acknowledged that the determination of whether a particular discharge meets this “functional equivalent” standard will be highly fact-dependent. To that end, the Court laid out seven, non-exclusive factors that may “prove relevant” to the inquiry, but it emphasized that transit time and distance traveled would be the most important factors in most cases. The Court also offered two examples, noting that:
- 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, but
- if the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with other material, and end up in navigable waters many years later, the permitting requirements likely do not apply.
The Court remanded the case back to the Ninth Circuit so that it could apply this new standard.
Going forward, regulated parties that plan to discharge wastewater through an underground well or groundwater conduit that could lead to a navigable water will need to carefully evaluate the Maui decision and its “functional equivalent” standard to see if a NPDES permit will be required. In addition, the Maui decision was issued two days after the Environmental Protection Agency (“EPA”) published its rule excluding groundwater from the definition of “waters of the United States” (“WOTUS”). 85 Fed. Reg. 22250 (Apr. 21, 2020). Those who petition for judicial review of the new rule may point out that it does not take into account the Supreme Court’s new thinking in Maui. It is not clear that this argument will be successful, however, given that the Maui decision addresses NPDES permits, and the WOTUS rule deals with dredging/fill permits under Section 404 of the Clean Water Act.
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