County of Maui v. Hawaii Wildlife Fund
140 S. Ct. 1462, 206 L. Ed. 2d 640 (2020)
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Rule of Law:
The Clean Water Act requires a permit for a discharge of pollutants from a point source that reaches navigable waters through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.
Facts:
- The County of Maui, Hawaii, operates a wastewater reclamation facility.
- The facility collects sewage, provides partial treatment, and then pumps approximately 4 million gallons of treated effluent per day into four underground injection wells.
- These wells are several hundred feet deep.
- After being injected into the wells, the effluent enters the groundwater.
- The effluent then travels approximately half a mile through the groundwater before emerging into the Pacific Ocean, a navigable water.
- A scientific study confirmed that a substantial amount of the effluent discharged from the wells eventually reaches the ocean.
- The County of Maui operated this facility for years without a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act for these discharges.
Procedural Posture:
- Hawaii Wildlife Fund and other environmental groups (plaintiffs) sued the County of Maui (defendant) in the U.S. District Court for the District of Hawaii.
- The plaintiffs alleged that Maui was violating the Clean Water Act by discharging pollutants into the Pacific Ocean without the required permit.
- The District Court, a trial court, granted summary judgment in favor of the environmental groups.
- The County of Maui (appellant) appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit, an intermediate appellate court, affirmed the trial court's ruling, holding that a permit is required when pollutants are 'fairly traceable' from a point source to a navigable water.
- The County of Maui petitioned the U.S. Supreme Court for a writ of certiorari, which the Court granted.
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Issue:
Does the Clean Water Act require a permit for an 'addition' of a pollutant 'from a point source' to navigable waters when the pollutant is discharged from a point source into groundwater and then migrates to navigable waters?
Opinions:
Majority - Justice Breyer
Yes. The Clean Water Act's permitting requirement applies to a discharge of pollutants that reaches 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 rejects both the Ninth Circuit's overly broad 'fairly traceable' test and the County of Maui's overly narrow 'means-of-delivery' test. The latter would create a massive and obvious loophole, allowing polluters to evade the Act by simply moving a pipe a few feet back from the water's edge. The Court's 'functional equivalent' standard best captures Congress's intent to regulate identifiable sources of pollution while preserving the States' primary role in regulating nonpoint source and groundwater pollution. Various factors, including transit time and distance traveled, are relevant to determining whether an indirect discharge is the functional equivalent of a direct one.
Concurring - Justice Kavanaugh
I join the Court's opinion in full. This holding adheres to Justice Scalia's plurality opinion in Rapanos v. United States, which reasoned that a polluter cannot evade the CWA's permitting requirement simply because pollutants pass through an intermediate conveyance before reaching navigable waters. The vagueness in the standard comes from the statutory text itself, not the Court's opinion. The Court provides concrete guidance for future cases by emphasizing that time and distance are the most important factors in the 'functional equivalent' analysis.
Dissenting - Justice Alito
No. The Court devises its own nebulous legal rule—the 'functional equivalent' test—that provides no clear guidance and invites arbitrary and inconsistent application. The statutory text presents two comprehensible alternatives: either the Act covers pollutants that originally came from a point source, or it covers only pollutants discharged directly from a point source into navigable waters. The better interpretation is the direct-discharge rule, which provides a clear, bright-line test consistent with the Act's structure of separating federal authority over point sources from state authority over nonpoint sources like groundwater. The majority's multi-factor test leaves regulated entities and lower courts to guess at its meaning, abandoning them to 'muddle through as best you can.'
Dissenting - Justice Thomas
No. Based on the statutory text, particularly the word 'addition,' a permit is required only when a point source discharges pollutants directly into navigable waters. When pollutants are released into groundwater, the groundwater is augmented, not the navigable water. If the pollutants later reach navigable waters, they are added 'from' the groundwater, not the original point source. The Court’s 'functional equivalent' test is atextual, open-ended, and departs from the CWA's careful division of federal and state authority by improperly extending federal power over groundwater.
Analysis:
This decision establishes a new, middle-ground standard for determining Clean Water Act liability for indirect discharges through groundwater. It carves a path between an overly broad 'fairly traceable' standard, which could excessively expand federal authority, and an overly narrow 'direct discharge' rule that would create a significant loophole. The 'functional equivalent' test creates a fact-intensive, case-by-case inquiry for lower courts and regulators, which will likely lead to further litigation to define its precise boundaries. This ruling significantly impacts industries utilizing underground injection wells or other systems where pollutants might migrate through groundwater, requiring a careful assessment of whether their activities now fall under federal permitting requirements.
