July 5, 2020

Volume X, Number 187

July 03, 2020

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The Supreme Court Finds That EPA and State Permitting Authority Extends to Discharge of Pollutants That Are the Functional Equivalent of Direct Discharge into Navigable Waters


In County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 140 S. Ct. 1462 (Apr. 23, 2020), the US Supreme Court determined that a permit is required by the Clean Water Act (CWA) when a pollutant has been discharged into navigable waters from a point source so that is the “functional equivalent” of a direct discharge. In creating a new permitting test and resolving a circuit split, Justice Breyer, writing for the majority, suggested that Environmental Protection Agency (EPA) and state governments may now provide further guidance to operators through “grants of individual permits, promulgation of general permits, or the development of general rules” to ensure that proper permitting guidelines are met.

Factual Background:

The facts of the case can be stated simply. The County of Maui had a wastewater reclamation facility that collected sewage, treated it, and pumped approximately 4 million gallons of treated water into the ground per day through wells. That treated water traveled approximately half a mile through groundwater to the Pacific Ocean. Environmental groups filed suit against the County claiming that this action constituted a violation of the CWA for introducing a pollutant into navigable waters without a required permit. §§ 301(a), 502(12), 86 Stat. 844, 886. 

Issue and Holding:

The central issue in the case was “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 Supreme Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

The Supreme Court looked to the definitional language in the CWA to determine whether a permit is required. The CWA prohibits “any addition” of any pollutant from “any point source” to “navigable waters” without a permit from EPA. §§ 301(a), 502(12), 86 Stat. 844, 886. A “pollutant” is broadly defined and can include solid waste, incinerator residue, heat, discarded equipment, or sand. § 504(6). A “point source” is defined as “‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged,’” including any “‘container,’” “‘pipe, ditch, cannel, tunnel, conduit,’” or “‘well’” § 502(14). “[D]ischarge of a pollutant” is “‘any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source,’” § 502(12). And the “discharge of any pollutant” without a permit is unlawful. § 301. 

In this case, at issue was whether a permit is required when the pollutant reaches navigable waters only after traveling from a “point source” (the wells) through groundwater to the ocean (a navigable water body). The district court and Ninth Circuit found merit in the various environmental groups’ arguments and held that the discharge by the County was one that was essentially into the ocean, and therefore required a permit. The Supreme Court granted certiorari to resolve a split among the circuits. See Hawai'i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) (holding that when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water,” a permit is required); Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018) (holding that a “direct hydrological connection” is required); Kentucky Waterways Alliance v. Kentucky Util. Co., 905 F.3d 925, 932–38 (6th Cir. 2018) (holding that discharges through groundwater are excluded from the CWA’s permitting requirements). 

The Supreme Court resolved the split in favor of a standard where a permit is required when the discharge from a point source is the “functional equivalent” of a direct discharge from a point source into navigable waters. 

The Supreme Court rejected the Ninth Circuit’s “fairly traceable” standard because that standard could be interpreted to allow EPA to require permits for the release of pollutants that may not reach navigable waters for many years and may do so in highly diluted forms. The Supreme Court further determined that granting EPA broad permitting authority related to groundwater pollution and non-point source pollution was not contemplated by Congress in enacting the CWA. That, the Supreme Court noted, was specifically reserved for the states. 

The Supreme Court also rejected the argument advanced by the County and the solicitor general that a permit is not required if a pollutant travels through some amount of groundwater prior to reaching navigable waters because it too narrowly construes the permitting authority of EPA and state governments. The Supreme Court reasoned that pollution would travel through some groundwater if a pipe spewing pollution were situated just a few yards off the coast. The Supreme Court concluded that Congress could not have intended to create such a “large and obvious loophole” in the permitting authority granted by the CWA. 

The Supreme Court’s decision in this case reaches a “middle ground” in developing a new standard for permitting authority under the CWA with the use of the “functional equivalent of a direct discharge” test. By way of example, the Supreme Court offered that a permit likely will be required where a pipeline expels pollutants that travel only a few feet through groundwater into navigable waters. Conversely, a permit likely will not be required when a pipeline ends some 50 miles from navigable waters and the pollutants it expels travel with groundwater over many years and end up in navigable waters. For cases that are not so clear-cut, the Supreme Court suggested that EPA and state governments can provide more guidance to operators on when and in what situations a permit is required.

Factors to Consider Relative to Whether a Permit Is Required:

The Supreme Court noted that time and distance likely will be the most important factors, but not in every case. Some additional factors to consider include the following:

(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 pollution (at that point) has maintained its specific identity 

Operators who discharge pollutants into groundwater that may eventually reach navigable waters will need to pay close attention to these regulations to determine whether a permit is required for their work.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 149


About this Author

Jeanne Amy Maritime Lawyer Jones Walker Law Firm

Ms. Amy is an associate in the firm's Admiralty & Maritime Practice Group and practices from the New Orleans office. Ms. Amy's practice focuses on maritime litigation, regulatory, and transactional matters. Prior to joining Jones Walker, Ms. Amy served as a judicial law clerk for the Honorable W. Eugene Davis of the United States Court of Appeals for the Fifth Circuit.

Ms. Amy is a 2016 graduate of Tulane University Law School where she earned her juris doctor degree, cum laude, and served as Editor in Chief of the Tulane...