WASHINGTON, D.C. -- April 23, 2020 -- Today, the United States Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund. The case examines whether the 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. Water Systems Council and the National Ground Water Association filed a joint friend 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 opinion resulted in an odd configuration of justices. Justice Breyer wrote the majority opinion, and was joined by Chief Justice Roberts, and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Thomas filed a dissenting opinion, with which Justice Gorsuch joined. Justice Alito filed a separate dissenting opinion.
The majority rejected the positions of both parties in the case, finding that the “fairly traceable” test promoted by the Hawaii Wildlife Fund to be too broad. However, the majority found that the test put forth by Maui County and the United States Environmental Protection Agency (EPA) that the pollution must be directly discharged from the point source to the navigable water too narrow and as creating a large loophole. The majority attempted to cut the baby in half by coming up with its own test: that a permit is required if the discharge is the “functional equivalent” of a direct discharge.
The majority admits that this test fails to clearly explain how to deal with the tough cases. Although the court lists 7 factors to be considered, the opinion says that there are “too many potentially relevant factors applicable to factually different cases for [the] Court now to use more specific language. The 7 factors listed by the court include: (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 the 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, and (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors “in most cases, but not necessarily every case."
Justice Alito’s scathing 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.”
Justice Alito fears that this the functionally equivalent rule may mean that owners of septic tanks must obtain a NPDES permit, although the majority replies that the EPA can handle that.
In summary, the admittedly unclear result in this case likely means that litigation over indirect discharges will continue to fight in the federal courts across the country. More guidance is likely forthcoming from the EPA, but the Court gave EPA interpretation little or no deference in this case. Justice Kavanaugh also reminded everyone in his opinion that the lack of clarity is not the fault of the courts, but the fault of Congress. However, Congress is unlikely to act to clarify this issue. Inevitably, the United States Supreme Court will have to decide one or more additional indirect discharge cases before the rule is clear.
Jesse J. Richardson, Jr.