In a much-anticipated ruling, the U.S. Supreme Court recently decided one of the most important Clean Water Act cases in three decades. In County of Maui v. Hawaiʻi Wildlife Fund, the Court held, for the first time, that in some instances, point source pollution carried indirectly from groundwater to surface water may now require a permit if it meets what the Court has called the “functional equivalent” test. The 6-3 ruling effectively widens environmental protection over navigable waters through the Clean Water Act.

Under the new test, specific factors must be analyzed to determine if the indirect discharge “is the functional equivalent of a direct discharge,” that would require a National Pollution Discharge Elimination System (NPDES) permit under the Clean Water Act, the Court said. Because this test will require a case-by-case analysis, overall impacts to national water policy and communities remain uncertain.

The case closed a potential loophole in the Clean Water Act that may impact point-source discharges into groundwater aquifers. The Hawai’i Wildlife Fund sued the County of Maui for injecting partially treated wastewater into injection wells connected by groundwater to the Pacific Ocean without a NPDES permit. The injection wells were installed in the 1980s and are half-mile inland from the Pacific Ocean. A federal-state report concluded that the wastewater made its way through groundwater to the Pacific Ocean, a “water of the United States” under the Act. Tracer dye was visible in the ocean 84 days after it was injected into the wells. The plaintiff alleged that there was damage to the reef resulting in both diminished aquatic health and species diversity.

Both parties agreed that the wells are a defined “point source” and the groundwater is not. The Hawai’i Wildlife Fund argued the contamination in the Pacific Ocean was directly tied to the effluent from the County’s injection wells and required an NPDES permit. The County of Maui claimed a point source had to discharge directly into navigable waters to trigger NPDES permitting under the Clean Water Act where groundwater was usually excluded.

The Court was unsatisfied by the federal circuit court’s “fairly traceable” test. Writing for the majority, Justice Stephen Breyer described a new “functional equivalent” test, with a non-exclusive list of seven factors to be considered:

  1. transit time,
  2. distance traveled,
  3. the nature of the material through 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 the pollutant that leaves the point source,
  6. the manner by or area in which the pollutant enters the navigable waters,
  7. the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. (Maui, Slip Op. at 16.) (Read the full opinion)

The seven factors will be applied in indirect water contamination cases where pollution is carried through groundwater into navigable waters to determine if an NPDES permit is mandatory. The justices intentionally kept the language nonspecific in respect to a state’s authority to manage water resources. Therefore, the application of these factors will vary state to state, as some states already require a permit for discharges to surface and groundwater. The Environmental Protection Agency may also decide to promulgate relevant regulations that provide built-in guidance on how the factors are weighted.

It is unclear how this will play out in the lower courts going forward due to ambiguity in the language of the Maui decision. Without clear guidelines and considering ever-changing policies on the scope of Waters of the United States (WOTUS) jurisdiction, the ruling is sure to affect policymaking and litigation over the next few decades.

Once again, we are back to litigating Clean Water Act violations on a case-by-case basis. In some cases, parties may be tempted to settle out of court, avoiding the functional equivalent debate altogether. The prescribed case-by-case analysis in many instances will require additional sampling, expert analysis, and extended litigation, making this a costly exercise for the parties involved.

As this new ruling is contested, Blue Access LLC will monitor how water policy and communities are impacted by the courts’ decisions. We are mindful of how caselaw impacts the implementation of water laws and ultimately affects water access in communities. Our approach involves collaboration with local stakeholders and results in community-supported solutions to water access issues locally and globally.

For a more detailed analysis of the U.S. Supreme Court’s ruling in Maui, please read Blue Access CEO Kathy Robb’s articleCounty of Maui v. Hawai’i Wildlife Fund: It’s Groundhog Day (Again). Reprinted by permission. This article originally appeared in The Water Report #196, June 15, 2020 — www.TheWaterReport.com.

Image: Hawaii aerial view/ademyan/iStock