The U.S. Supreme Court recently issued an opinion in County of Maui v. Hawaii Wildlife Fund that further expands upon its opinions under the Clean Water Act.  This time, the Court addressed the issue of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater.  Point sources under the Clean Water Act are defined as “any discernible, confined and discrete conveyance … from which pollutants are or may be discharged,” including containers, pipes, ditches, channels, tunnels, conduits, or wells.  In County of Maui, a wastewater reclamation facility collected sewage from the surrounding area, partially treated it, and pumped the treated water through four wells hundreds of feet underground.  This effluent then traveled a further half mile through groundwater to the ocean.  Environmental groups brought an action under the citizen-suit provision of the Clean Water Act claiming that the city was discharging a pollutant to navigable waters without a permit required by the Clean Water Act.

After spending much space in its opinion discussing the arguments of the parties as to the standard that should be used to address the issue, the Court eventually found a middle ground.  Specifically, the Court held that the Clean Water Act requires a permit “when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”  That is to say, an addition falls within the statutory requirement when a point source directly deposits pollutants in the navigable waters or when the discharge “reaches the same result through roughly similar means.”

Acknowledging the vagueness of this standard, the Court’s opinion attempted to provide some guidelines:

Time and distance are obviously important.  Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies.  If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.

The Court also provided some factors that may prove relevant depending upon the circumstances of a particular case in determining whether a discharge is a “functional equivalent”: (1) transit time, (2) distance traveled, (3) the nature of the material though which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of 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.  The Court noted that “[t]ime and distance will be the most important factors in most cases, but not necessarily every case.”

Understandably, both the City of Maui and the federal government (which filed an amicus brief) argued that subjecting discharges to navigable waters through groundwater to permitting requirements would vastly expand the scope of the statute, requiring permits for each of the 650,000 wells like the city’s or each of the over 20 million septic systems used in many Americans’ homes.  The Court did not disagree with this analysis but instead found that both EPA and the courts have discretion when dealing with enforcement and permitting issues given the “complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the [Clean Water] Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”

Obviously, the Court’s opinion provides a broad outline, and US EPA and lower courts will flesh out the specifics as they interpret the Court’s opinion and decide individual cases that come before them.  It is important to note that the Court did not hold that the facility at issue in County of Maui needed a permit but simply remanded the case to the Ninth Circuit for further proceedings consistent with its opinion.  As a result, the first test of this opinion will be when the lower courts rule on whether this particular facility needs a permit.  If courts rule that a permit is required, it is likely that plaintiff’s attorneys and environmental groups will gear up for citizen suits against similar wastewater reclamation facilities and perhaps begin filing actions against facilities that may less obviously require a permit.

While the Court’s opinion leaves a lot to be addressed in the future, this would be a good time for facility owners and plant managers to review whether their operations may be impacted by this decision.  Any owner and manager of a facility that discharges to groundwater via a container, pipe, ditch, channel, tunnel, conduit, or well should review its operations to at least make a preliminary determination as to whether it may need a permit.

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