By: Rachel Hart
A recent United States Supreme Court decision answered a long-debated question regarding a major provision of the Clean Water Act.[1]Although the answer given by the Court is broad and imprecise, it tightens restrictions on direct discharges into navigable waters of the United States, promoting healthier and cleaner waters.[2]
Introduction
In Maui v. Hawaii Wildlife Fund, environmental organizations brought suit against the County of Maui, alleging that the County was discharging effluent at four injection wells without a National Pollution Discharge Elimination System (NPDES) permit, thereby violating the Clean Water Act (CWA).[3]The CWA prohibits “any addition of any pollutant from any point source to navigable waters without an appropriate permit from the Environmental Protection Agency.”[4]If there is a direct discharge of pollutants from a point source into a navigable waterway, a permit is required.[5]Here, the County of Maui collects sewage, partially treats it, and then pumps it into four wells.[6]This effluent travels through groundwater for about half a mile and is then discharged into the Pacific Ocean.[7] The issue is whether effluent traveling from a point source into groundwater—a nonpoint source—and then into a navigable waterway, is considered a direct discharge.[8]
The environmental organizations claim that this effluent qualifies as a pollutant that is discharged into navigable waters–the Pacific Ocean–without the required NPDES permit.[9]The other party, the County of Maui, argues that if the pollutant is discharged from a point source but then travels through groundwater–a nonpoint source–before being discharged into navigable waters, a NPDES permit is not required.[10]The major disagreement is whether a NPDES permit is required when a pollutant originates from a point source but is discharged into navigable waters from a nonpoint source.[11]
Prior to the United States Supreme Court hearing this case, the District Court entered summary judgment in favor of the environmental organizations.[12]The County of Maui appealed, and the Ninth Circuit Court of Appeals affirmed the District Court’s decision.[13]The United States Supreme Court granted the County of Maui’s petition for certiorari “in light of the differences in standards adopted by the different Courts of Appeals” in the nation.[14]
What is a Direct Discharge under the CWA?
The Court focuses on the language and purposes of the Clean Water Act in interpreting this provision. The most prominent linguistic issue is the word “from” as used in the Clean Water Act.[15]The CWA prohibits discharge “from any point source” into navigable waters without a permit.[16]The environmental groups claim that “from” means fairly traceable, a standard supported by the Ninth Circuit.[17]On the other hand, the County of Maui argues that a pollutant is only from a point source if it is the “last conveyance” that transported the pollutant to the navigable waters; the point source must be the means of delivering the pollutants.[18]
The Supreme Court finds flaws in both parties’ interpretations. Regarding the environmental organization’s fairly traceable standard, the Court states that it is too broad.[19]One of Congress’s objectives in enacting the CWA was to leave the regulation of groundwater and nonpoint sources for the states.[20]A fairly traceable standard would interfere with the state’s authority to regulate groundwater and nonpoint sources.[21]The EPA’s role in regulating groundwater was meant to be limited.[22]Therefore, the Court asserts that it cannot “apply the word ‘from’ in a way that could interfere as seriously with States’ traditional regulatory authority. . . as the Ninth Circuit’s fairly traceable standard.”[23]The fairly traceable standard is too broad.[24]
Longstanding regulatory practice also provides justification for the Court’s rejection of the fairly traceable standard.[25]For over 30 years, the EPA required a permit for pollutants that travel from point sources, through groundwater and then to navigable waterways.[26]When regulating this type of discharge, the EPA used a narrower standard than “fairly traceable.”[27]A permit was only required if the pollutant was discharged through injection wells and into groundwater with “a physically and temporally direct hydrological connection to surface water.”[28]Historically, the EPA has taken the time and distance traveled into account, not requiring permits if the pollutant must travel through groundwater for a lengthy period of time or distance before entering navigable waters.[29]The Court states that the historical use of this narrower standard indicates that the broader “fairly traceable” standard was not within Congress’ objective when creating the Clean Water Act and delegating authority to EPA.[30]
The Court does not support the County of Maui’s interpretation either. The County advocates for an interpretation of the word “from” to mean that the point source is the last conveyance of the pollutant into the navigable waterway.[31]The standard is termed “the means-of-delivery test,” as it only requires a permit if the point source delivers the pollutant directly into the navigable waterway.[32]Unlike the fairly traceable standard, the Court says the County of Maui’s interpretation is too narrow.[33]If the Court were to accept this interpretation, it would interfere with EPA’s ability to regulate point discharges.[34]Particularly, this interpretation would lead to a loophole in the regulation. An owner could avoid the permitting process by moving a pipe which discharges pollutants a few yards from the navigable waterway. This way, the pollutant would have to travel a few yards in the groundwater before reaching navigable waters. The groundwater–a nonpoint source–delivers the pollutant. Because the County’s interpretation of the word “from” creates a serious and unreasonable loophole in the permitting process, the Court does not support the means-of-delivery test.[35]
The EPA supports a reading of the CWA provisions to mean that “all releases of pollutants to groundwater are excluded from the scope of the permitting program.”[36]This would include pollutants that travel to navigable waters through groundwater.[37]Similar to the Court’s view of the County of Maui interpretation, the Court asserts that this reading of the regulations would lead to a significant loophole that would circumvent the purpose of the CWA.[38]
After rejecting both parties’ interpretations of the term “from,” the Court importantly notes that the statute does not mention the words “direct” or “immediately” from.[39]Therefore, although the pollutants in this case enter the Pacific Ocean from groundwater, the pollutant originates from a point source, and that point source cannot be ignored simply because the pollutant is not discharged immediately from the point source. The Court holds that “the statute 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.”[40]The Court lays out seven factors to consider when deciding whether there is the functional equivalent of a direct discharge of pollutants into a navigable waterway:
- 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 points source;
- The manner by or area in which the pollutant enters the navigable waters; and
- The degree to which the pollution (at that point) has maintained its specific identity.[41]
The Court specifically notes that time and distance are the most important factors to consider in most cases.[42]
Overall, the Court says that an interpretation of the statutory provisions should not interfere with state regulation of groundwater and it should not create loopholes that undermine the objectives of the CWA.[43]The Court vacates the Ninth Circuit’s judgment and remands the case.[44]Since the Court’s ruling, the Ninth Circuit has remanded the case to the District Court for further proceedings.[45]
Future Implications
Although the Court did not rule in favor of the environmental organizations’ fairly traceable standard, this case is likely considered a win for environmental advocates. The Court expanded the definition of direct discharge by adding a functional equivalent standard, further promoting the health of the nation’s navigable waterways.[46]By not supporting the EPA’s narrow definition of direct discharge, the Court refused to allow the use of loopholes in applying the Clean Water Act and prevented the potential dismantling of the CWA. In this case, the effluent discharged into the Pacific Ocean was not only threatening the purity of the water but was also threatening, and even killing, nearby coral reefs.[47]Even though the District Court has not yet applied the seven factors, nor has it decided whether the County of Maui must get a NPDES permit, the expanded definition of direct discharge leans in favor of environmental organizations.
Of course, this ruling by the Supreme Court will likely lead to more litigation because the application of these seven factors will be in dispute. Although the Court issued some guidance on what distance the effluent may need to travel to constitute a functional equivalent of direct discharge, it used a distance of a few feet versus 50 miles as examples, leaving much middle ground open for interpretation.[48]Here, once the effluent is discharged from the point source it travels one-half mile through groundwater before reaching the Pacific Ocean.[49]This distance is not close to a few feet nor is it close to 50 miles, leaving this factor of the functional equivalent test open to interpretation by the District Court.
An independent study by the EPA may help determine whether two of the factors set out by the Court qualify as a functional equivalent of direct discharge: (1) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source and (2) the transit time. In the study, 3 to 5 million gallons of effluent per day were discharged into the ocean. The study concluded that “at least 50% of this effluent makes its way relatively rapidly into the ocean.”[50]Given that the transit time is described as “rapid” and at least 50% of the effluent enters the ocean, it is possible that the District Court will decide that these two factors have been met. As of June 2020, the County of Maui urges for more investigation and discovery allowing the case to proceed.[51]The environmental groups responded by opposing reopening discovery.[52]Overall, this fact-intensive decision by the District Court will determine if the ocean waters of Maui and nearby coral reefs will receive the protection that is likely vital to their survival.[53]
Conclusion
TheMaui v. Hawaii Wildlife Fund Court created the functional equivalent test for direct discharge thereby expanding the scope of the Clean Water Act.[54]Accordingly, the Court refused to allow the EPA and the County of Maui to create a loophole to the permitting process of the CWA. As a result of this decision, more business and government entities that discharge pollutants into navigable waterways may need to go through the NPDES permitting process and may push back against this broad new standard. Despite this being a seemingly victorious decision for the environment, it is inevitable that litigation concerning the application of the function equivalent test will ensue. The EPA, along with the courts, will have to determine the best way to apply this new test, balancing governmental and commercial interests with the health and wellbeing of the environment.
[1]SeeCounty of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020).
[2]See id. at 1476.
[3]Id.at 1469.
[4]Id.at 1468.
[5]Id.
[6]Id. at 1469.
[7]Id.; Merriam-Webster, https://www.merriam-webster.com/dictionary/effluent (last visited January 13, 2021) (effluent is defined as waste material discharged into the environment especially when serving as a pollutant).
[8]County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1468 (2020).
[9]Id. at 1462.
[10]Id.at 1474.
[11]Id.at 1469.
[12]Id.
[13]Id.
[14]Id.
[15]Id.at 1470.
[16]Id.at 1468.
[17]Id.at 1470.
[18]Id.
[19]Id. at 1471.
[20]Id.
[21]Id.
[22]Id.
[23]Id.
[24]Id.
[25]Id.at 1472.
[26]United States Steel Corp. v. Train, 556 F.2d 822 (C.A.7 1977).
[27]In re Bethlehem Steel Corp., 2 E. A. D. 1, 2 (EAB 1989).
[28]Id.
[29]County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1472 (2020).
[30]Id.at 1473.
[31]Id.at 1470.
[32]Id.at 1473.
[33]Id.
[34]Id.
[35]Id.at 1474.
[36]Id.
[37]Id.
[38]Id.
[39]Id. at 1475.
[40]Id.at 1476.
[41]Id.at 1476-77.
[42]Id.at 1476-77.
[43]Id. at 1477.
[44]Id.at 1478.
[45]Id.
[46]Id.at 1476.
[47]Hawaii Wildlife Fund v. County of Maui, 24 F.Supp.3d 980, 985 (D. Haw. 2014).
[48]County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1476 (2020).
[49]Id. at 1465.
[50]Hawaii Wildlife Fund v. County of Maui, 24 F.Supp.3d 980, 1004 (D. Haw. 2014).
[51]Meera Gajjar, SCOTUS Adopts Functional Equivalent Test for Groundwater Pollution, 41 No. 02 WJENV 07 (2020).
[52]Id.
[53]Hawaii Wildlife Fund v. County of Maui, 24 F.Supp.3d 980, 985 (D. Haw. 2014). “Plaintiffs’ experts also say that the effluent flowing into the ocean has substantially lower pH levels and oxygen concentration than the receiving water. The low pH, Plaintiffs’ experts say, is causing some species of reef-building corals and coralline algae to dissolve and die, and the low level of oxygen is suffocating coral, leading to loss of coral tissue and coral death.”
[54]County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1476 (2020).