Overview
On April 23, 2020, the United States Supreme Court handed down its opinion in County of Maui v. Hawaii Wildlife Fund (the Maui case), holding that, in certain situations the Clean Water Act (CWA) requires a permit for pollutant discharges to groundwater. The county of Maui and the US Environmental Protection Agency (EPA) argued that permits were required only for direct discharges of pollutants to navigable waters, while environmental groups urged the Court to accept the Ninth Circuit's standard that a permit is required where pollution of "navigable waters" is "fairly traceable" (through groundwater) to a point source. Instead of adopting either view, the Court fashioned an amorphous standard, holding that a permit is required where the addition of pollutants through groundwater is the "functional equivalent" of a direct discharge into navigable waters, and remanded the case to the Ninth Circuit. Cty. of Maui v. Hawaii Wildlife Fund, No. 18-260, slip op. (U.S. April 23, 2020).
Background
The CWA requires a permit to discharge pollutants from a "point source" into "navigable waters." 33 U.S.C. §§ 1311(c), 1362(12). Under the CWA, a "point source" is "any discernible, confined and discrete conveyance," while "navigable waters" means "waters of the United States (WOTUS)." § 1362(7), (14). Certain facilities discharge pollutants to groundwater, and over the past few years, a split has developed in the circuit courts regarding whether and under what circumstances the discharge of pollutants to groundwater that eventually lead to navigable waters can be subject to the CWA. Compare Ky. Waterways All. v. Ky. Utils. Co., 905 F. 3d 925, 932-938 (6th Cir. 2018) (CWA only applies where pollutants are added directly from a point source to navigable waters), with Hawaii Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) (permit required where "pollutants are fairly traceable from the point source to the navigable water").
The County of Maui case involved discharges from underground injection wells that travel half a mile through groundwater before discharging into the Pacific Ocean. In 2012, several environmental groups sued Maui County, claiming that the injection wells violated the CWA.
The District Court granted summary judgement in favor of the environmental plaintiffs, holding that, because the pollutants' path to the ocean from the wells was "clearly ascertainable," the discharge from the wells into the groundwater was "functionally one into navigable water." Hawaii Wildlife Fund v. Cty. of Maui, 24 F. Supp. 3d 980, 998 (D. Haw. 2014). The Ninth Circuit affirmed but applied a different standard, holding that a permit is required where "the pollutants are fairly traceable from the point source to the navigable water such that the discharge is the functional equivalent of a discharge into the navigable water." Hawaii Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) (emphasis added). Based on the circuit split on this issue, the Supreme Court granted certiorari in 2019. Last week, the Court held that a permit is required where the addition of pollutants through groundwater is the "functional equivalent" of a direct discharge into navigable waters, directing that "[w]hether pollutants that arrive at navigable waters after traveling through groundwater are 'from' a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge." Id. at 1, 16.
Implications
While largely leaving the finer points of this "functional equivalent" test to be hashed out by the lower courts on a case-by-case basis, the Court listed seven factors for courts to consider:
- Transit time;
- Distance traveled;
- 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 amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
- The manner by or area in which the pollutant enters the navigable waters;
- The degree to which the pollution (at that point) has maintained its specific identity. Id. at 16.
The Court reiterated that "[d]ecisions [by district courts] should not create serious risks of either undermining state regulation of groundwater or of creating loopholes that undermine the statute's basic federal regulatory objectives." Maui, slip op. at 17.
The Court also left the ball in EPA's court, saying EPA could provide administrative guidance through grants of individual permits, promulgation of general permits, or the development of general rules. Additionally, the Court stated that EPA and the states could mitigate any undue expansion by developing general permits for recurring situations or by issuing permits based on best practices. Id. However, the development of general permits under the CWA is a complex and cumbersome process that historically has led to extensive litigation, so it may not be the "easy fix" that the Court seems to contemplate.
In fact, EPA had been busy trying to avoid this type of expansive reading of the Act. On April 21, 2020 EPA published its final Waters of the US (WOTUS) rule in the Federal Register, which details the waters that are not subject to federal control, including groundwater. The rule also rejects the view that groundwater or other subsurface connections can be a basis of finding CWA jurisdiction:
The agencies believe that implementation of subsurface connections as a basis for CWA jurisdiction would be overinclusive and would encroach on State and tribal authority over land and water resources. . . . A groundwater or subsurface connection could also be confusing and difficult to implement, including in the determination of whether a subsurface connection exists and to what extent.
77 Fed. Reg. at 22313. Therefore, this issue of groundwater connectivity will likely be part of the litigation surrounding the new WOTUS rule, which has already begun. See Chesapeake Bay Foundation, Inc. et al v. Wheeler et al, CIVIL DOCKET FOR CASE #: 1:20-cv-01063 D. Maryland (Baltimore) (filed April 27, 2020).
The Supreme Court's County of Maui decision may provide additional fodder for challenges to EPA's new WOTUS rule, as the Court appears to have accepted that an underground hydrological connection can indeed be sufficient to trigger jurisdiction under the CWA.
While the Supreme Court has clearly held that point source releases of pollutants to groundwater are not categorically excluded from the scope of the Act's permitting requirements, the Court largely left it to the lower courts, EPA and the states to grapple with how the "functional equivalent" standard applies to specific types of releases.
