New Test Under Clean Water Act

The U.S. Supreme Court struck a middle ground in the most closely-watched environmental case of the October 2019 Term. By a vote of 6-3, the Court held in County of Maui, Hawaii v. Hawaii Wildlife Fund, 590 U. S. ____ (2020),that the Clean Water Act (CWA) 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.

Facts of the Case

TheCWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters”without first obtaining a permitunder theNational Pollutant Discharge Elimination System(NPDES).Under the CWA,“discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”The CWAdefines theterm “navigable waters”tomean“waters of the United States, including the territorial seas.”It defines the term “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”

Petitioner County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around four million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent environmental groups brought a citizens’ CWA suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” and granted summary judgment to the environmental groups.

The Ninth Circuit affirmed. It held that the CWA does not require that the point source itself convey the pollutants directly into the navigable water.According to the Ninth Circuit, the Countyof Mauiwas liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater thandeminimislevels.

The test adopted by the Ninth Circuit was rejected by the Environmental Protection Agency (EPA) under President Donald Trump. According tothe EPA, discharges of pollutants togroundwater are “categorically excluded” from the CWA’s permitting requirements.

Majority Decision

The Supreme Court reversed, creating its own standard under the CWA. “We conclude that the 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,” Justice Stephen Breyer wrote on behalf of the majority.

In so ruling, the Court rejected the Ninth Circuit’s “fairly traceable” test. At the same time, it also rejected the argument that groundwater discharges should always be excluded from the purview of the CWA. “We agree that statutory context limits the reach of the statutory phrase ‘from any point source’ to a range of circumstances narrower than that which the Ninth Circuit’s interpretation suggests,” Justice Breyer wrote. “At the same time, it is significantly broader than the total exclusion of all discharges through groundwater described by Maui and the Solicitor General.”

The Supreme Court’s“functional equivalent of a direct discharge” standard will require a permit for discharge from any point source directly into navigable waters, and from point sources when the discharge “reaches the same result through roughly similar means.” The Court noted that time and distance will be the most important factors in most cases, but listed seven factors that should be considered in determining whether the discharge comes “from” a point source:(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.

The Court remanded the case back to the Ninth Circuit with instructions to apply its newly announced standard.

Dissent

Justice Clarence Thomas filed a dissenting opinion, in which Justice Neil Gorsuch joined. Justice Samuel Alito also filed a dissenting opinion. All of the dissenting justices argued that a permit should only be required “when a point source discharges pollutants directly into navigable waters.”