July 29, 2021


Posted on July 29, 2021 by Kenneth J. Warren

In an ACOEL blog posted on July 27, 2021, Seth Jaffe expressed his support for the Supreme Court’s majority opinion in the Maui case and the subsequent ruling by the District Court.  In Maui, the Supreme Court held that an NPDES permit is required when pollutants originating from a point source are conveyed into a navigable water through groundwater in a manner that constitutes the functional equivalent of a direct discharge to the navigable water.  And on remand the District Court held that due to the proximity of the point source to the navigable water at issue (the ocean), the short duration of travel time through the groundwater, the large volume of pollutants discharged and other factors, the County of Maui’s wastewater reclamation facility required an NPDES permit.

Like the Court majority, Jaffe concludes that the functional equivalent test strikes the proper balance between indirect discharges subject to the Clean Water Act’s permit requirement and those falling outside its coverage.  Plainly a decision requiring an NPDES permit for all indirect discharges, or alternatively a decision excluding all indirect discharges from the permit requirement, would provide the certainty to dischargers, regulators and the public that the functional equivalent standard lacks. But the Court concluded that encompassing all indirect discharges would conflict with the decision of Congress to leave groundwater and non-point sources to state regulation, while excluding all indirect discharges would create too large a loophole.  Neither the Court nor Jaffe can be faulted for concluding that despite the drawbacks of the functional equivalent test, it may be the best the Court can do.

Conceptual groundwater-flow diagram.

The resulting predicament in which dischargers are placed, not knowing whether an unpermitted discharge to groundwater will result in enforcement actions, citizens suits and penalties, arises from the decision of Congress to subordinate scientific facts to other considerations.  Water managers understand that surface and groundwater ordinarily form interconnected systems.  Achieving the goal of the Clean Water Act, restoring the integrity of the Nation’s waters, requires control of pollutants migrating from groundwater to surface waters as well as pollutants conveyed directly to surface waters.  Yet when enacting the Clean Water Act, Congress for the most part left regulation of groundwater and non-point sources to the states without requiring any coordinated implementation between NPDES and other water programs. 

While bifurcation of control over a single system of surface water and groundwater furthers interests of states in maintaining primacy over groundwater and interests of certain stakeholders in avoiding federal regulation, it limits ability to achieve the Clean Water Act’s objectives through the NPDES permitting regime.  As a consequence, courts strain to interpret statutory language practically, and restoration of waterbodies is imperiled.  The uncertainty over the need for a permit to discharge through groundwater as examined in Maui, or the difficulties encountered in many jurisdictions in attaining water quality standards where non-point sources are major contributors to water quality impairments, are predictable outcomes when scientific and technical principles are subordinated to other considerations.

Constitutionally constrained by statutory language and the federal-state balance Congress established, the Court’s solution is a step toward implementing the Clean Water Act with due regard for how groundwater and surface water interact in specific settings.  Yet to improve the Nation’s waters to a fishable and swimmable condition, Congress will need to develop a better way of integrating federal and state water programs.  It could require establishment of groundwater standards to supplement Clean Water Act surface water standards and Safe Drinking Water Act maximum contaminant levels, require proactive state regulation of groundwater and non-point sources as a condition of delegation of the NPDES program to the states, or encourage federal-state partnerships through compacts or other means.  Perhaps by leaving many stakeholders dissatisfied with its decision due to the constraints of the statute, the Court has set the stage for action by Congress.  Even in this harshly partisan time, one can hope.