How do you know if you need a federal permit when you discharge pollutants into groundwater? “That’s your problem,” Supreme Court says.

On April 23, 2020, a divided Supreme Court ruled in County of Maui, Hawaii v. Hawaii Wildlife Fund 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.”  The Court reversed and remanded the case to the Ninth Circuit, which had supported CWA jurisdiction based on a “fairly traceable” to a point source test.

At issue was whether the County of Maui needed a permit for its discharge of wastewater into groundwater wells from where its wastewater seeps into the Pacific Ocean.  The EPA never required a CWA permit for these discharges despite knowing of these activities by the County for decades.  Nevertheless, decades after the County initiated these discharges environmental groups filed this case against the County of Maui under the CWA’s citizen suit provisions asserting violations of the CWA.

The ambiguity of the reach of the CWA over point source discharges into “navigable waters” to include arroyos, artificial wetlands, or in this case groundwater, has spawned decades of rulemaking, litigation and uncertainty in the regulated community.  This decision does little to resolve that uncertainty. The Court rejected the County’s argument that its discharges into groundwater are categorically outside the scope of the CWA’s regulation of discharges into navigable waters.  Such a categorical rule would enable easy evasion of the CWA, the Court reasoned.  It also rejected the environmentalists’ argument that virtually any discharge traceable from a point source to navigable water is within the scope of the CWA because that would expand the scope of the CWA too much.  Instead, the Court took the middle road by creating a new “functional equivalent of a direct discharge” test.  But, it recognized that “[t]he difficulty with this approach, [] is that it does not, on its own, clearly explain how to deal with middle instances.”

In an attempt to provide guidance, the Court identified seven non-exclusive factors as potentially relevant to determining what constitutes the functional equivalent of a direct discharge.  The Court also noted that “[t]ime and distance will be the most important factors in most cases, but not necessarily every case.” The only specifics the Court provided, however, were that a discharge of pollutants “a few feet” from navigable water likely requires a permit, and a discharge “50 miles” away where it would take “many years” for the pollutant to reach navigable water likely does not require a permit.

The Court did not, however, attempt to apply its guidance to the case at bar.  None of the four opinions even disclose the distance from the County’s wells to the Pacific Ocean or the time it takes for its wastewater to get to the ocean (the answers are about half a mile and 84 days).  So, how are potentially regulated entities and lower courts supposed know what is within the CWA’s scope?  The Court suggests that case law will eventually develop to provide guidance and that the EPA may issue additional guidance in the future.  But, for the time being at least, dissenting Justice Alito sums up the Court’s answer best: “That’s your problem. Muddle through as best you can.”