The U.S. Supreme Court issued its opinion in Maui County v. Hawai’i Wildlife Fund on April 23, ruling in favor of the fund in a 6-3 decision.
The case examined whether the U.S. Clean Water Act requires a National Pollution Discharge Elimination System (NPDES) permit when pollutants are conveyed from a point source to navigable waters by a nonpoint source. In this case, that nonpoint source was groundwater.
With the ruling, the high court said the Clean Water Act not only forbids direct discharges of pollutants but the “functional equivalent” as well.
The National Ground Water Association and Water Systems Council filed a joint friends of court brief in the case, maintaining that groundwater regulation should be left to the states and that requiring a permit in these indirect conveyance cases would unduly burden water well contractors.
The two associations released this statement after the ruling: “While today’s ruling came as a disappointment, we respect the Supreme Court’s decision on this matter. We maintain that states should have the right to manage their groundwater and we are interested in exploring legislative avenues to bring clarity to this issue. Today’s SCOTUS decision clearly indicates there is more work to be done.”
The opinion resulted in an unlikely configuration of justices. Justice Stephen Breyer wrote the majority opinion, and was joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh. Justice Clarence Thomas filed a dissenting opinion, with which Justice Neil Gorsuch joined. Justice Samuel Alito filed a separate dissenting opinion.
The majority rejected the positions of both parties in the case, finding the “fairly traceable” test promoted by the Hawai’i Wildlife Fund to be too broad. However, the majority also found the test put forth by Maui County and the U.S. Environmental Protection Agency that the pollution must be directly discharged from the point source to the navigable water too narrow and creating a large loophole.
The two feelings resulted in the majority attempting to come up with their own test—a permit is required if the discharge is the “functional equivalent” of a direct discharge.
The majority admitted this test fails to clearly explain how to deal with tough cases, but listed seven factors to be considered:
- 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 the 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.
Justice Alito’s dissent opines that:
Entities like water treatment authorities that need to know whether they must get a permit are left to guess how this nebulous standard will be applied. Regulators are given the discretion, at least in the first instance, to make of this standard what they will. And the lower courts? The Court’s advice, in essence, is: “That’s your problem. Muddle through as best you can.”
Alito fears this functionally equivalent rule may mean owners of septic tanks must obtain a NPDES permit, although the majority replies that the EPA can handle that.
The admittedly unclear result likely means litigation over indirect discharges will continue in federal courts across the country for the foreseeable future.
— article written by Jesse J. Richardson Jr., Esq., and Thad Plumley