SCOTUS Holds Clean Water Act Permits Required for Some Releases to Groundwater
In a highly anticipated decision yesterday, the Supreme Court announced on a 6-3 basis that Clean Water Act permits are required under certain circumstances for point source pollutants that reach jurisdictional waters through groundwater. On the critical question of which circumstances, the Court announced a fact-dependent, qualitative test: a CWA permit is required for point source pollutants that reach jurisdictional waters through groundwater when it is the functional equivalent of a direct discharge from the point source to the jurisdictional water. The newly minted functional equivalence test leaves the regulatory and citizen suit implications of the decision unclear, but additional permitting burdens on industry are possible, as is additional, more cumbersome, citizen suit activity.
The majority opinion acknowledges that this test is highly fact dependent and that its contours will need to be refined, potentially through guidance, rules, and caselaw. The dissent is highly critical of the test as “provid[ing] no clear guidance and invit[ing] arbitrary and inconsistent application.” However, the majority does identify travel time and distance to jurisdictional waters as particularly relevant considerations. Other non-exclusive factors listed by the Court are: (1) the nature of the material through which the pollutant travels, (2) the extent to which the pollutant is diluted or chemically changed as it travels, (3) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (4) the manner by or area in which the pollutant enters the navigable waters, (5) the degree to which the pollution (at that point) has maintained its specific identity.
This particular case involved a Maui wastewater reclamation facility that, each day, pumps around 4 million gallons of treated water into the ground through four wells, about a half mile from the Pacific Ocean. In 2012, environmental groups sued under the CWA, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” “from a point source” without the required permit. The critical issue was whether the pollutants were properly considered “from” a point source despite their intervening flow through groundwater. The Ninth Circuit held that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737, 749 (9th Cir. 2018). The Supreme Court rejected the Ninth Circuit’s fairly traceable test, contrary reasoning and tests of other lower courts, and EPA guidance, instead adopting the functional equivalence test.
KMCL attorneys have been working through these sorts of “indirect discharge” issues for years with industry clients, and we welcome any questions about the very significant regulatory and litigation implications of this long-awaited decision.