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SCOTUS Muddies All The Waters

In a decision which seems likely to inject yet more uncertainty into whether the introduction of pollutants to surface waters via groundwater triggers the permitting requirements of the Clean Water Act (“CWA”), a majority of United States Supreme Court Justices have determined that the 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 County of Maui operates a wastewater treatment plant which injects about 4 million gallons per day of treated wastewater into two injection wells.  The wastewater travels a short distance via groundwater before it discharges into the Pacific Ocean.  The County of Maui does not have a CWA permit for this discharge and the Ninth Circuit had held that a CWA discharge permit is required because the “pollutants are fairly traceable from the point source to a navigable water.” 

In reviewing the Ninth Circuit’s decision in County of Maui, Hawaii v. Hawaii Wildlife Fund et al., the Supreme Court framed the issue at hand as whether the CWA “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a ‘nonpoint source,’ here, ‘groundwater.’” The majority noted that the Ninth Circuit’s “fairly traceable” standard would invite CWA permitting authority in situations where contaminants travel many miles or years to reach surface water, but that Congress did not intend that CWA jurisdiction be that broad.  Instead, Congress left substantial authority over groundwater quality and non-point source pollution to the States. Indeed, the legislative history of the CWA shows that the EPA Administrator at the time the Act was promulgated specifically asked that groundwater be included in EPA’s jurisdiction, but that Congress specifically rejected a proposed amendment to that end.  

Rejecting the Ninth Circuit’s “fairly traceable” standard for establishing CWA jurisdiction, the Supreme Court adopted a “functional equivalent” standard that is arguably equally difficult to interpret and apply, if not more so.  Perhaps hoping to ameliorate that very result, the majority articulated seven factors which might help determine whether a discharge to surface waters via groundwater is the “functional equivalent” of a direct discharge: (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 the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pol¬lution (at that point) has maintained its specific identity. 

While the majority observed that “time and distance will be the most important factors in most cases, but not necessarily every case,” the reality is that CWA jurisdiction will now be a multi-faceted, fact based analysis, that may well be more complicated and contentious than it ever was.  Indeed the majority appears to have thrown up its collective hands, admitting that it is difficult to “more clearly explain how to deal with middle instances.”  The new reality may be that nearly every discharge of contaminants to surface water via groundwater represents a “middle instance” which requires extensive fact-finding and discovery.  Thus, summary judgment motions to contest CWA jurisdiction may be a thing of the past. 

And as to the probability that CWA permits may now be required for 650,000 injection wells and more than 20 million sep¬tic systems, most of which serve single family residences, the majority, observing that the EPA has been applying CWA permitting to discharges for over 30 years, basically just shrugs its collective shoulders in apparent resignation to that eventuality.  In short, this decision promises to invite increased CWA enforcement and permitting in addition to greater numbers of CWA citizen suits which cannot be quickly resolved without protracted litigation and lengthy expert discovery.  It promises to be a wild ride.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 114



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Bradford De Vore Toxic Torts Lawyer Womble

Toxic torts and high-stakes environmental litigation involve complex legal and technical issues, and multi-million-dollar liability exposure. Such cases can create media concerns and governmental enforcement actions that transcend the individual dispute. Environmental enforcement matters also can present significant business risks, perhaps crippling or even shutting down a company.

When clients face such threats they choose Brad for his and his top-drawer team’s experience and ability to tackle even the most complicated problems. 

Lisa Rushton, Womble Dickinson Law Firm, Raleigh and Washington DC, Corporate and Environmental Law Attorney

An industry-leading environmental transactions attorney, Lisa Rushton guides corporate clients, including global, multi-national, and local corporations, real estate developers, financial institutions and investment funds on matters relating to federal, state, and local environmental, health and safety laws and regulations and was identified by Chambers as one of the leading environmental practitioners for business transactions.

With substantial experience in matters relating to air and water pollution control laws, solid and hazardous waste management and cleanup...

Richard E. Morton, Womble Bond Dickinson, Regulatory and environmental lawyer

When clients face multi-million dollar environmental claims and regulatory enforcement challenges they turn to Ric because of his insight, tenacity and ability to untangle even the most complicated matters. Ric counsels companies in federal and state regulatory compliance and dispute resolution. His practice focuses on environmental regulatory compliance, litigation and enforcement defense, as well as toxic tort and products liability litigation.

Ric is particularly experienced in defending clients against bet-the-company damage claims related to chemical exposure; this includes...

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Jimmy Kirkland brings a strong technical background and regulatory experience to his legal practice as a Member in the Environmental Practice Group of Womble Carlyle’s Atlanta office. Prior to joining Womble Carlyle, Mr. Kirkland served for 17 years as a member of the Tort Litigation and Environmental Team at King & Spalding LLP in Atlanta, Georgia. Mr. Kirkland also worked as a principal environmental engineer and manager for the Georgia Department of Natural Resources, Environmental Protection Division (EPD). At EPD, Mr. Kirkland had experience in air...

Michael James Bogle Environmental Litigation Attorney Womble Bond Dickinson Greenville, SC

Environmental litigation can be damaging and costly. That’s why corporate clients trust Michael with their complex US environmental litigation matters, including CERCLA/cost recovery actions, toxic tort actions and cases involving impacted property. Michael also helps clients comply with state and federal environmental regulations. He guides companies in buying, selling and remediating contaminated properties, negotiating access agreements, and reviewing environmental aspects of real estate transactions, including the negotiation of numerous voluntary cleanup contracts under the South...