By Leonard Dougal, Ali Abazari, & Alisha Mehta
On April 23, 2020, the U.S. Supreme Court issued a 6-3 opinion in County of Maui v. Hawaii Wildlife Fund, which established a new test to determine the permitting requirements under the Clean Water Act (CWA). The case centered on the County of Maui’s Lahaina Wastewater Reclamation Facility, which treats millions of gallons of waste each day and then injects it into deep wells underground. A 2013 study ordered by the Environmental Protection Agency (EPA) showed that 90% of this waste ultimately ends up in the Pacific Ocean, after traveling through groundwater.
The CWA prohibits the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the EPA. See Federal Water Pollution Control Act, §§ 301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) § 2, 86 Stat. 844, 886, 33 U.S.C. §§ 1311(a), 1362(12)(A). The question in this case was whether the CWA requires a permit when the pollutants originate from a point source, but are conveyed to navigable waters by a nonpoint source, such as groundwater.
Previously, the 9th Circuit held that a permit is required 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.” SCOTUS adopted a narrower interpretation than the 9th Circuit, concluding that a permit is required when there is “a direct discharge from a point source into the navigable waters or when there is the functional equivalent of a direct discharge.” The Court emphasizes that time, distance, the nature of material through which the pollutant travels, the extent to which the pollutant is diluted or changed as it travels, the amount of pollutant, the manner by which the pollutant enters the navigable waters, and the degree to which the pollution has maintained its specific identity could be important considerations when making this determination.
The County of Maui argued for a bright-line test known as the “means-of-delivery” test, which would find that no permit was required here because groundwater, not the point source, delivered the pollutant to navigable waters. The Court disagreed, using a hypothetical to explain the issues with the means-of-delivery test: a pipe spewing pollution directly into coastal waters clearly requires a permit, but if the County of Maui’s argument was accepted, moving the pipe back a few yards so that the pollution travels through groundwater before it meets the sea would avoid this permitting requirement. The Court said, “[w]e do not see how Congress could have intended to create such a large and obvious loophole.”
The Court recognizes that their test, which is a middle ground, is more difficult to administer. However, they reason that taking an absolute stance is inconsistent with congressional objectives. Therefore, they conclude that “the permitting requirement, § 301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.” The Court vacated the 9th Circuit’s judgment and remanded the case for further proceedings consistent with this new test.
Leonard H. Dougal represents a diverse group of clients in complex permitting and water matters, including energy companies involved in shale development, power generation companies, real estate developers, and special utility districts. He is also active in water quality issues where he represents mining and energy companies, developers, and agricultural operators in Clean Water Act permit and compliance matters. A Chambers USA-ranked attorney in Texas for environmental matters, Leonard is a sought-after speaker at bar and continuing legal education seminars regarding emerging water law issues.
Ali Abazari is an environmental law attorney whose practice is focused on environmental permitting and compliance assistance, defense of environmental enforcement actions, and environmental aspects of real estate and corporate transactions. He represents a diverse group of clients including mining companies, energy companies, manufacturers, real estate developers, and utilities with an emphasis on CERCLA, RCRA, CWA, SMCRA, OPA, SDWA, NEPA, and their state counterparts.
Alisha Mehta represents clients in complex permitting and water matters, including real estate developers and special utility districts. In her practice, she regularly counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas, including energy project transactions, regulatory proceedings, contested cases, and rate cases. Additionally, she is experienced in preparing due diligence memorandums and analysis of environmental issues for renewable energy projects.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.