During the past five years, the Supreme Court has rarely heard environmental cases. This term, however, seems to be different. On April 23, 2020, the U.S. Supreme Court decided an important case dealing with the Clean Water Act: County of Maui, Hawaii v. Hawaii Wildlife Fund ET AL.
1. Case involved partially treated wastewater pumped into groundwater that then emptied into Pacific Ocean.
The County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and then pumps around 4 million gallons of partially treated water into the ground through four wells. This effluent then travels through the groundwater for a distance of about one-half mile and then empties into the Pacific Ocean.
The County of Maui does not have a permit for the discharge of this effluent to the navigable waters of the Pacific Ocean.
The Clean Water Act forbids the discharge of a pollutant from any point source to the navigable waters of the United States without an appropriate permit, Section 301. Visit here for a summary of the Clean Water Act and Section 301.
In this case, the Solicitor General of the United States joined the County of Maui in arguing that the Clean Water Act’s permitting requirement does not apply if a pollutant, having emerged from a “point source,” must travel through any amount of groundwater before reaching navigable waters. They further argued that if a pollutant travels through groundwater, then the groundwater is the conveyance and no permit is required, because a permit is only required where the conveyance is a point source, and groundwater doesn’t meet that definition.
The Solicitor General joined this case because of the significant precedent that would be set that directly overturns the EPA’s recent Interpretive Statement, namely, that “all releases of pollutants to groundwater” are excluded from the scope of the Section 301 permitting program “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”
2. Court held Clean Water Act requires a permit from a point source into navigable waters such as the Pacific Ocean.
The majority held that the statutory provisions of the Clean Water Act require 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.” Thus, in this case, the Court decided that the pumping and subsequent discharge constituted the functional equivalent of a direct discharge.
The court went on to say that many factors may be relevant to determining whether a particular discharge is the functional equivalent of one made directly into navigable waters.
3. No clear line.
Time and distance will be the most important factors in most cases, but others, such as 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, factor in as well. The court recognizes they are not providing a “clear line,” but expect that future courts and the EPA, which has “applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope,” to provide additional guidance.
4. What does the decision mean to you?
This decision will require organizations that discharge pollutants into the groundwater before they find their way into navigable waters to reconsider the factors presented by the Court in determining whether or not they are now required by the Clean Water Act and the U.S. Supreme Court to get a permit under Section 301. Scout Environmental is ready to work with clients to evaluate the site-specific conditions and recommend an appropriate set of actions.
Contact us to hear more about how we can help you: hello@scoutenv.com
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