SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Posted on May 1, 2020 by Theodore Garrett

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.

The Court’s opinion in Maui reflects an effort to find a “middle ground” that avoids the consequences of an overly broad or overly narrow interpretation of the statute.  But what is a “functional equivalent”?  It’s kinda sorta like a direct discharge.  Its meaning will evolve as applied in particular cases or, as characterized thusly in Justice Alito’s dissent: “That’s your problem. Muddle through as best you can.”  But muddling through is problematic because affected industrial and municipal dischargers, subject to enforcement, need to know whether or not they need Clean Water Act permits.  Unless or until more guidance is provided by EPA, the lower courts or Congress, affected parties will be left to wrestle with the Court’s new “functional equivalent” standard. 

The majority felt compelled to reach a “middle ground” because it found other positions too extreme.  The court rejected the view of the County and the Solicitor General (as amicus) that discharges through groundwater should be excluded, stating that it would open a loophole allowing easy evasion of the statutory provision’s basic purposes (for example by locating a pipe a few yards from a surface water) and was not reasonable in light of the statute’s inclusion of “wells” in the “point source” definition.  The Court also was not satisfied with the Ninth Circuit’s “fairly traceable” criterion, concluding that it might require permits in unexpected circumstances not readily foreseen, such as discharges that reach navigable waters many years after their release and in highly diluted forms. 

So when is a discharge “functionally equivalent”?  Justice Breyer’s opinion states that time and distance will likely be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. How much time?  How far?  What underground material or dilution might defeat a permit requirement?  The Court is not in a position to say because “there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.” 

Where does that leave us?  The lower courts will need to wrestle with this issue and “provide additional guidance through decisions in individual cases” Justice Bryer states, referring to the “traditional common-law method" as useful even in an era of statutes.  In the meantime, affected parties face uncertainty. 

In a dissent, Justice Thomas (joined by Justice Gorsuch) concludes that the statute excludes anything other than a direct discharge.  Justice Thomas also states that the Court’s opinion “gives almost no guidance, save for a list of seven factors” but does not “commit to whether those factors are the only relevant ones, whether those factors are always relevant, or which factors are the most important.”  Justice Alito also dissented, stating that the Court “makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”

One cannot be sanguine that Congress will address this issue.  Interested parties will thus need to monitor how the lower courts and EPA apply the Supreme Court’s new “functional equivalent” standard.

County of Maui Decided: Groundwater Discharges Require Permit . . . Sometimes

Posted on April 27, 2020 by Rick Glick

On April 23, in a 6-3 opinion, the U. S. Supreme Court decided one of the more closely followed environmental disputes of recent years.  In County of Maui v. Hawaii Wildlife Fund, the issue was whether injecting municipal sewage effluent into groundwater, which then travels about half a mile before discharging to the ocean, requires a permit under the Clean Water Act (CWA).  The Court found that it did.

The purpose of the CWA is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”  The principal tool for achieving this lofty goal is a permit system for discharges from “point sources”, meaning a “discrete conveyance.”  The most obvious example of a regulated discharge is that from the end of a pipe directly to a navigable waterway.  In the Maui case, the discharge passed through groundwater before entering the ocean, but data showed the ocean discharge contained the same pollutants as were pumped underground. 

Is such a discharge “from” the point source, i.e. municipal treatment plant, or from the groundwater?  Writing for the majority, Justice Breyer announced a new test for deciding such a case.  A permit is required for a point source discharge or the “functional equivalent.”  That is, a direct discharge and a discharge through groundwater are functionally equivalent when “the discharge reaches the same result through roughly similar means.”  He likened the situation to a recipe that calls for adding drippings from the meat into the gravy; no one would question that “from” in that context includes conveyance through a pan or cutting board. 

The majority rejected arguments from the County, EPA and Justices Alito and Thomas in dissenting opinions, that there should be a bright line test—no discharges through groundwater should ever be subject to federal regulation.  Justice Breyer reasoned that approach would create gaping “loopholes” that would prevent attainment of the CWA’s conservation goals.  For example, a facility could terminate a discharge pipe on the beach a few feet from the navigable receiving water, and then maintain that a permit is not necessary because the pollutants came from the soils between the pipe and waterway. 

Justice Breyer acknowledged that functional equivalence will not always be easy to discern, as groundwater always eventually finds its way to navigable waters.  There will be times when the presence of pollutants in navigable waters is too attenuated from the discharge to justify a permit.  In Maui’s situation, the injected pollutants had to travel about half a mile to the ocean.  What if they had to travel 250 miles and did not emerge in the receiving waters for 100 years?  The majority is content to allow future courts and agencies to refine the new test.

This decision, and the unwillingness to adopt an easy to apply test, reflects a recognition by the Court of the complexities that underlie jurisdictional determinations under the CWA.  As noted here, the Trump Administration’s attempt at rewriting the definition of “waters of the United States,” which is the basis for CWA jurisdiction, goes the other direction.  The proposed WOTUS rule seeks to establish a simple definition based on observable, running water.  In doing so it follows Justice Scalia’s plurality opinion in the Rapanos case and rejects Justice Kennedy’s “significant nexus” test.  The latter is nuanced and involves professional judgment about the interconnectedness of natural systems.  The Maui Court’s “functional equivalent” test is of a kind with “significant nexus” in its focus on achieving the purpose of the CWA.

While the Court’s decision is sensible and promotes science-based jurisdictional determinations, it leaves a great deal of uncertainty in place.  The Court expects, and we can too, that there will be many cases and administrative processes considering when discharges to groundwater require permits.

Channeling Scalia: Does the Clean Water Act Regulate Indirect Discharges “to” Navigable Waters Via Groundwater?

Posted on December 11, 2018 by Patrick A. Parenteau

On December 4 the Supreme Court signaled its interest in this question when it requested the views of the Solicitor General on whether to grant review in two pending petitions for certiorari. In County of Maui v. Hawai'i Wildlife Fund, the Ninth Circuit held that wastewater injection wells are point sources requiring NPDES permits because 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.” In Kinder Morgan Energy Partners LP v. Upstate Forever the Fourth Circuit held that gasoline from a ruptured underground pipeline that was seeping into a nearby waterway was subject to the CWA due to a "direct hydrological connection."

By contrast the Sixth Circuit as well as a different panel of the Fourth Circuit have ruled that leachate from coal ash pits that is polluting rivers and lakes is not a “discharge from a point source” requiring a permit under the CWA. Though a majority of the thirty-odd decisions on this issue have found in favor of CWA jurisidiction, there is a definite split among the lower courts as described in a handy chart and accompanying article published by Greenwire. In looking over the decisons it appears that the “conduit” theory, evaluating time and distance between the source of the pollutants and the receiving water, and often supported by a dye test, is perhaps the most defensible methodology for asserting jurisdiction over discharges to “tributary groundwater.”   

Meanwhile EPA is pondering whether to change its longstanding position, reiterated in the Clean Water Rule (aka WOTUS), that the CWA does cover, on a case-by-case basis, point source discharges to groundwater that are directly connected to navigable waters. Back in February EPA published a request for comment in the Federal Register on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” The comment period closed in May and since then there has been no futher announcement.

The SG’s response is due January 4, which is an unusually short turnaround time that indicates four Justices may be in favor of granting one or both of the petitions in time for argument this term. The SG could cite EPA’s ongoing review with the prospect of a new policy statement or rulemaking as a reason to deny review at this time, but it is unlikley the Court would accede to that. This issue has been kicking around for decades; it has generated a good deal of confusion among the lower courts and conflicting rulings not only among but within the Circuits; it adds to the uncertainty and controversy that plagues the implementation of the CWA; and it has significant economic and environmental implications. Awaiting further word from EPA is unlikely to clarify or resolve any of this. Nor is a re-interpretation of the statute by the current EPA likely to garner much deference from a Court that has shown signs of cutting back on the scope of the Chevron doctrine.

That leaves the question how should the Court resolve the issue. In the Maui case the Ninth Circuit relied fairly heavily on Justice Scalia’s plurality opinion in Rapanos in which he  recognized the CWA does not forbid the addition of any pollutant directly to navigable waters from any point source, ” but rather the “addition of any pollutant to navigable waters.” (547 U.S. 715, 743 (2006)) Though Rapanos was a splintered decision on many points there was no disagreement with Scalia’s view that the text of the statute clearly encompassed an indirect discharge that simply “washes into” navigable waters. Whether that view prevails this time around is of course unknown.

Any rule this Court would adopt would have to be narrowly tailored to situations where the source of the pollutant was clearly a “discrete conveyance” and the evidence of a direct hydrological connection to navigable water was convincing. But assuming those predicates were proven it would be hard to justify on either scientific or policy grounds excluding such discharges from the ambit of the permit program. Indeed it would create a pollution loophole that no other existing regulatory program --federal or state--would adequately fill.