County of Maui v. Hawaii Wildlife Fund

2020-04-23

Headline: Water pollution rule limits federal permits to discharges that are direct or the “functional equivalent,” narrowing federal reach and leaving many groundwater pollution rules to states, affecting wastewater plants and groundwater users nationwide.

Holding:

Real World Impact:

Makes some wastewater wells require federal permits when pollution reaches waters like the ocean.
Leaves many groundwater and nonpoint pollution controls primarily to state regulators.
Lower courts and agencies must apply time, distance, and other factors to each case.

Topics: water pollution, groundwater, federal permits, wastewater treatment, state regulation

Summary

Background

The dispute involves the County of Maui, which operates a wastewater reclamation facility that pumps about 4 million gallons of treated sewage per day into four deep wells. That effluent travels through groundwater for roughly a half mile and then reaches the Pacific Ocean. A group of environmental organizations sued, saying Maui was adding pollutants to navigable waters without the required federal permit; lower courts divided over how broadly the Clean Water Act’s permitting rule should reach pollution that moves through groundwater.

Reasoning

The Court read the statute’s key phrase—an ‘‘addition ... to navigable waters from any point source’’—to require a permit when a point source directly discharges to navigable waters or when the pollution that reaches the waters is the ‘‘functional equivalent’’ of a direct discharge. The majority rejected both an all-or-nothing test that would treat every pollutant that ever traces back to a point source as covered and a too-narrow rule that would allow easy evasion by adding a small gap of groundwater. The opinion lists relevant factors—especially time and distance, plus dilution, chemistry, and how the pollutant enters the water—to decide case by case. The Court vacated the Ninth Circuit’s “fairly traceable” standard and sent the case back for further proceedings under the new approach.

Real world impact

The ruling means some discharges that reach rivers or the ocean through groundwater may require federal permits when they are essentially like a direct pipe discharge, but many groundwater and other nonpoint pollution problems remain primarily within state control. Agencies and courts must apply the listed factors to real-world situations, and the decision could affect wastewater plants, certain wells, and the way regulators handle septic systems and groundwater-linked pollution.

Dissents or concurrances

A concurrence emphasized continuity with past precedent and the importance of time and distance. Two dissents argued for a bright-line, direct-discharge rule, warning the majority’s test is vague and burdensome and could confuse regulated entities and states.