Daniel C. Summerlin III

Daniel C. Summerlin III
Principal and President

John K. Byrum Jr.

John K. Byrum Jr.
Principal

On April 23, 2020, the United States Supreme Court published a 6-3 opinion in County of Maui v. Hawaii Wildlife Fund holding that the Clean Water Act, (CWA or Act) requires a permit when there is a direct discharge of pollutants from a point source into waters of the United States or where there is an indirect discharge which constitutes the “functional equivalent” of a direct discharge.

County of Maui involved the appeal of a 2018 decision by the United States Court of Appeals for the Ninth Circuit reviewing a 2014 decision on litigation brought by various environmental groups including the Hawaii Wildlife Fund.

Background: Wastewater Reclamation and the Clean Water Act

The County of Maui operates a wastewater reclamation facility on the Hawaiian island of Maui that collects sewage from the surrounding area, partially treats it, and pumps approximately four million gallons of treated wastewater per day into underground wells. From the wells, the water travels “a half mile or so, through groundwater,” to the Pacific Ocean.

By its terms, the Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the U.S. Environmental Protection Agency (EPA). On this basis, the Hawaii Wildlife Fund brought a citizen suit under the Act alleging that Maui was discharging pollutants into navigable waters without the requisite permit.

Ninth Circuit Position

The question before the Ninth Circuit was whether the CWA governs the discharge from a point source to navigable waters through groundwater. The District Court found the discharge from Maui’s wells into nearby groundwater was “functionally one into navigable water” and granted summary judgment to the Wildlife Fund. The Ninth Circuit affirmed, but on the somewhat different rationale that the Act requires a permit whenever “pollutants are fairly traceable from the point source to a navigable water.”

Environmental Protection Agency Position

On April 15, 2019, after receiving more than 50,000 comments and after the Ninth Circuit issued its opinion in the case, the EPA published an Interpretive Statement holding that all releases of pollutants to groundwater are excluded from the CWA permit program “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”

Supreme Court “Functional Equivalence” Standard

On appeal, Maui, joined by the U.S. Solicitor General, argued on behalf of the government. In the majority opinion, Justice Breyer, joined by Chief Justice Roberts and Justices Ginsberg, Sotomayor, Kagan and Kavanagh, struck a middle ground between the positions offered by the parties, the government and the dissents – which amounted to the EPA’s categorical exclusion of discharges into groundwater versus the Ninth Circuit’s expansive “fairly traceable” test.

In short, the majority found both of these interpretations to be “too extreme.” Striking a middle ground between the Ninth Circuit’s and the government’s positions, the Court held the Clean Water Act requires a permit whenever there is a direct discharge of pollutants from a point source into navigable waters or when there is the functional equivalent of a direct discharge.

Determining a Functional Equivalent

In determining whether a “functional equivalent” of a direct discharge exists, the Court explained, “time and distance are obviously important.” Using the example of a pipe that ends a few feet from navigable waters and emits pollutants that travel those few feet through groundwater, the permitting requirement clearly would apply.

On the other hand, “if the pipe ends 50 miles from navigable waters and 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.

Many factors may be relevant to the inquiry depending on the facts of the case, the Court said, including:

  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 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 pollutant (at that point) has maintained its specific identity.

 “Time and distance will be the most important factors in most cases,” the Court concluded, “but not every case.”

Effects of County of Maui on Future Cases

It will take some time to ascertain the full impact of the Maui decision. First, the EPA will have to revise its April 2019 Interpretive Statement to reflect the Maui Standard and the revised policy will likely need public comment.

Some interest groups view Maui as an unwelcome restriction on the broader Ninth Circuit interpretation. Others read the opinion as a stern rebuke of EPA’s attempt to exempt discharges into groundwater from the CWA altogether. A number of pundits call the opinion “devastating” for industries that will now have to determine whether they need a permit by applying the new, multi-factor Maui test instead of EPA’s former, bright-line rule. They fear the decision will open the floodgates of litigation.

What is immediately evident is the decision will certainly impact water, wastewater, and other utilities and industries that either purposefully discharge treated water or wastewater into groundwater or accidentally discharge pollutants into groundwater that reaches navigable waters. Among the latter is a dispute over petroleum pollution from a pipeline rupture pending decision by the Court.

Finally, the Maui decision may have ramifications for cases involving a number of electric utilities who faced claims in recent years that they needed permits for coal ash impoundments that leaked pollutants into groundwater and, ultimately, nearby surface waters.


If you have concerns about determining a Functional Equivalent or other ways this decision will affect your operations:
Contact Dan Summerlin at summerlin@woodsrogers.com.
Contact John Byrum at jbyrum@woodsrogers.com.