U.S. Supreme Court expands Clean Water Act regulation to discharges through groundwater
By Jim Bradbury and Courtney Smith
James D. Bradbury, PLLC Attorneys
The U.S. Supreme Court recently ruled on a long-running environmental case out of Hawaii concerning whether the Clean Water Act can regulate discharges through groundwater.
In County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (April 23, 2020), environmental groups sued County of Maui under the Clean Water Act citizen suit provision for discharging effluent without a National Pollutant Discharge Elimination System (NPDES) permit. In that case, County of Maui’s wastewater reclamation facility collected sewage from the surrounding area, partially treated it, and daily pumped around four million gallons of treated water into the ground through a series of wells. The effluent then traveled approximately a half mile, through groundwater, to the Pacific Ocean.
The district court ruled that the discharge from the wells into groundwater was “functionally” into “navigable waters.” The Ninth Circuit Court of Appeals affirmed this decision. County of Maui appealed to the U.S. Supreme Court, which held 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 went on to explain that many factors may be relevant to whether a discharge is the “functional equivalent” of a direct discharge. These equitable factors include: 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; and 7) the degree to which the pollution has maintained its specific identity. The Court also said that there could be other factors.
Six justices joined the majority opinion while three justices dissented. In his dissenting opinion, Justice Samuel Alito made clear that the majority’s “functional equivalent” test would never be susceptible to consistent interpretation or application. The majority has created a wholly new standard that was never a part of the Clean Water Act. Without providing any real guidance in how its new standard is to be interpreted or applied, the Court recognized the vagueness of the functional equivalent standard while deferring to regulators and citizen suits to provide guidance on how the standard should work.
The implications for businesses and utilities are significant. Facilities like water treatment operations, CAFOs and other operations need certainty in whether a permit is required and what standard applies. The Court’s amorphous standard will be difficult for EPA or anyone else to define, and no matter what definition or application is made, the risk of citizen suits based on the interpretation will be substantial. The standard leaves the individual permitting discretion to regulators to do as they will and leaves lower courts to apply their own strained interpretation of the standard. The Court effectively shrugged its shoulders and said good luck.
It is unquestionable that the County of Maui decision will lead to significant additional litigation. On remand, the County of Maui has already indicated to the district court its intent to continue its fight and its belief that the discharges do not require a permit even under the Court’s “functional equivalent” standard. One thing is certain, this issue is far from resolved and will continue to be an issue to watch in Clean Water Act cases in years to come.