In a decision delivered by Justice Breyer in the case of County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. No. 18-260 (“County of Maui”), a six Justice majority held that the statutory provisions of the Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pollution Control Act Amendments of 1972 (“Clean Water Act”) §2, 86 Stat. 844, 886, 33 U. S. C. §§1311(a), 1362(12)(A), do 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.” County of Maui, Slip Op. at 1 and 15. The majority opinion was joined by Justices Ginsburg, Sotomayor, Kagan and Kavanaugh, with Justice Kavanaugh filing a concurring opinion. Justice Thomas filed a dissenting opinion joined by Justice Gorsuch. Justice Alito also filed a dissenting opinion.
The Petitioner, County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. The discharge is noted to travel about a half mile, through groundwater, to the Pacific Ocean. The Respondent environmental groups filed a citizens suit under 33 U.S.C §1365(a) (§505(a)) of the Clean Water Act claiming that Maui was “‘discharg[ing]’ a ‘pollutant’ to ‘navigable waters,’ namely, the Pacific Ocean, without the permit required by the Clean Water Act.” County of Maui, Slip Op. at 3. The District Court, relying upon a study of the discharges, found that a considerable amount of the effluent from the wells ended up in the ocean by a path from Maui’s wells to the ocean that was “clearly ascertainable.” The District Court held that “because the ‘path to the ocean is clearly ascertainable,’ the discharge from Maui’s wells into the nearby groundwater was ‘functionally one into navigable water.’ 24 F. Supp. 3d 980, 998 (Haw. 2014). And it granted summary judgment in favor of the environmental groups. See id., at 1005.” Id.
The Ninth Circuit Court of Appeals affirmed the District Court but, it did so applying a revised standard. In the Ninth Circuit’s view, the relevant standard was that “a permit is required when ‘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.’ 886 F. 3d 737, 749 (2018) (emphasis added).” County of Maui, Slip Op. at 3. The Ninth Circuit left “for another day” the question of when, if ever, a connection between a point source and navigable water could be so tenuous as to avoid obtaining a permit. Id.
The County of Maui petitioned for certiorari to the U.S. Supreme Court. The U.S. Supreme Court granted the petition in light of differences the Court identified in the standards adopted by different United States Courts of Appeal concerning the issue presented. The Solicitor General also submitted a brief presenting positions of the U.S. EPA.
In the majority opinion, the U.S. Supreme Court finds that the statutory authority of the Clean Water Act limits regulation of discharges to those “from any point source” and declares that the limitation imposed by use of the word “from” is narrower than the interpretation sought by the citizen groups in this case and declared by the Ninth Circuit as being “fairly traceable” to the point source. County of Maui, Slip Op. at 5. However, the majority option indicates that the authority of the Clean Water Act is broader than the “total exclusion” of all groundwater discharges argued by the County of Maui and the Solicitor General. Id. The majority was troubled that the Ninth Circuit’s “fairly traceable” test could allow EPA to apply permitting requirements to release of “pollutants that reach navigable waters many years after their release.” Id. at 5-6. The majority did not think that Congress created this broad of authority under the Clean Water Act. To interpret ‘from’ so broadly could require a permit in unexpected circumstances, such as, e.g., “the 100-year migration of pollutants through 250 miles of groundwater to a river.” Id. at 6. The majority could not see how the addition of a “proximate cause” test – the point source must be the proximate cause of the pollutant’s eventual addition to the navigable water – would significantly narrow the statute’s reach beyond the words “fairly traceable.” Id. at 6, and 9-10.
The majority observed that the structure of the Clean Water Act leaves “substantial responsibility and autonomy” in the hands of the States in terms of addressing groundwater, and, the Court doubted that Congress intended to give EPA “authority that could seriously interfere with this state responsibility.” County of Maui, Slip Op. at 6 and 7. The majority notes that the Clean Water Act’s legislative history strongly supports the conclusion that the permitting authority does not extend as far as a “fairly traceable” connection. Id. at 7. The Court further offers that “longstanding regulatory practice undermines the Ninth Circuit’s broad interpretation of the statute. EPA itself for many years has applied the permitting provision to pollution discharges from point sources that reached navigable waters only after traveling through groundwater.” Id. at 7-8.
On the other hand, the majority finds that the argument that the Clean Water Act cannot apply to any point source discharge traveling through any amount of groundwater, too narrow. County of Maui, Slip Op. at 10. In the majority view, this position would “risk serious interference with EPA’s ability to regulate ordinary point source discharges.” Id. The Court provides an example of a pipe discharging directly into the ocean that is moved only a few yards back so that the pollution must travel through at least some groundwater before reaching the ocean. Under the view offered by the appealing parties, this later situation would not require a permit. The majority could not accept how Congress would have intended to create “such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.” Id. at 10.
Regarding the definition of “discharge” being “any addition” of a pollutant to navigable waters “from any point source (being a discrete conveyance),” the majority rejects the argument of the appealing parties that the above-language limits the coverage of the Clean Water Act to only releases that occur directly from point sources (i.e., being the discrete conveyance) into navigable waters. In other words, in the majority view, the inquiry is not limited to how the pollutant makes it to the navigable waters – did it get there directly from a point source, a so called means-of-delivery test. County of Maui, Slip Op. at 11. Under this means-of-delivery test, if the pollutant travels through any source of groundwater the groundwater itself would be the point of conveyance to navigable waters, not the point source. Thus, no permit could be required for the point source under these conditions. The majority decision rejects this test, noting that the context of the words “from” and “to” provide “strong evidence that Congress was referring to a destination (‘navigable waters’) and an origin (‘any point source’). Further underscoring that Congress intended this every day meaning is that the object of ‘from’ is a ‘point source’—a source, again, connoting an origin.” Id. Considering the point-of-conveyance argument, the majority could not accept such an “unreasonable” and “serious loophole in the permitting regime” that would in its view occur if it accepted this test.
Likewise, the majority rejects the Solicitor General’s argument, reflecting EPA’s Interpretive Statement, that “‘all releases of pollutants to groundwater’ are excluded from the scope of the permitting program, ‘even where pollutants are conveyed to jurisdictional surface waters via groundwater.’ 84 Fed. Reg. 16810, 16811.” County of Maui, Slip Op. at 12. This view would “open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable.” Id. With reference to EPA’s positions in the case, the majority notes that: “[n]either the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need.” Id.
The majority agrees with EPA that Congress did not under the Clean Water Act require a permit for all discharges to groundwater, and that Congress did authorize funding and study for EPA related to groundwater pollution. However, the majority rejected the EPA argument that because Congress authorized a study and funding for groundwater pollution, Congress must not have intended EPA to permit discharges to groundwater. The majority decision notes that the “statutory text [of the Clean Water Act] itself alludes to no exception for discharges through groundwater. These separate provisions for study and funding that EPA points to would be a ‘surprisingly indirect route’ to convey ‘an important and easily expressed message’—that the permit requirement simply does not apply if the pollutants travel through groundwater.” County of Maui, Slip Op. at 12. The majority finds EPA’s “new interpretation” difficult to reconcile with the Clean Water Act’s reference to “any addition” of pollutants to navigable waters; with the Clean Water Act’s inclusion of “wells” in the definition of “point sources,” “for wells most ordinarily would discharge pollutants through groundwater;” and with the requirement that EPA not delegate permitting under the Clean Water Act to any state unless it is providing “adequate authority” to “control disposal of pollutants into wells.” Id. at 13.
With refence to the dissenting opinions, the majority notes that while the language of the Clean Water Act could be narrowed to similar effect by reading the statute to refer only to the pollutant’s immediate origin, “there is no linguistic basis here to so limit the statute in that way.” County of Maui, Slip Op. at 13. The majority emphasizes the “context” of the language at in the statute. For instance, it is noted that Justice Thomas dissent “insists that in the case of a discharge through groundwater, the pollutants are added ‘from the groundwater.’ Post, at 2.” Id. The majority responds that, in context, this language does mean that that the discharge cannot also be “from the point source” – “the statute here does not say ‘directly’ or ‘immediately from.’” Id. The majority decision addresses Justice Alito’s dissent that “from” in the context discussed above must mean either the immediate source or the original source, and that since it cannot be reasonably read to mean the original source, it must refer only to the immediate origin of the discharge. Again, in context, the majority believes this does not prevent a discharge as being “from” groundwater but also being “from” a point source. Id.
The majority also reject’s Justice Thomas argument that the word “addition” dictates a there be a “direct discharge” from a point source. They point to examples where something could be added “indirectly” but still be an “addition” within what the majority opinion considers a reasonable construction of the Clean Water Act language in context. In one of their examples, “[i]f Timmy is told to ‘add water to the bath from the well’ he will know just what it means—even though he will have to use a bucket to complete the task.” County of Maui, Slip Op. at 14. The majority seems to result back to its basic position that that it will not entertain any argument that would “create the same loopholes as offered by the petitioner and the Government, and more. It would necessarily exclude a pipe that drains onto the beach next to navigable waters, even if the pollutants then flow to those waters.” Id. at 14-15.
In the majority view, the answer to when point source discharges to groundwater can be required to obtain a permit under the Clean Water Act lies somewhere between the “extremes” offered by the litigants in County of Maui. In trying to provide a “middle ground,” the majority focuses on what it believes to be Congress’ “basic aim” in providing “federal regulation of identifiable sources of pollutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater.” County of Maui, Slip Op. at 15. Considering the criteria that could be used for determining when Clean Water Act authority could require a permit for a point source discharging to groundwater, the majority writes:
We hold that the statute 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. We think this phrase best captures, in broad terms, those circumstances in which Congress intended to require a federal permit. That is, an addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.
Id. The Court notes that “time” and “distance” are important, providing examples — a discharge a few feet from navigable waters would require a permit, but a pipe that ends 50 miles from navigable waters and emits pollutants that travel within groundwater, mix with other material and end up in navigable waters only many years later likely would not. County of Maui, Slip Op. at 15-16. The majority notes that:
The object in a given scenario will be to advance, in a manner consistent with the statute’s language, the statutory purposes that Congress sought to achieve. As we have said (repeatedly), the word ‘from’ seeks a ‘point source’ origin, and context imposes natural limits as to when a point source can properly be considered the origin of pollution that travels through groundwater. That context includes the need, reflected in the statute, to preserve state regulation of groundwater and other nonpoint sources of pollution. Whether pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge.
Id. The majority recognizes it is leaving significant uncertainty and that it does not in its view “clearly explain how to deal with middle instances” for making permit determinations. The decision recognizes that there are “too many potentially relevant factors applicable to factually different cases” for the Court to provide a more concrete or specific ruling. Some of the potentially relevant factors identified to be considered include:
- transit time,
- distance traveled,
- the nature of the material through which the pollutant travels,
- the extent to which the pollutant is diluted or chemically changed as it travels,
- the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source,
- the manner by or area in which the pollutant enters the navigable waters,
- the degree to which the pollution (at that point) has maintained its specific identity.
Time and distance are noted as being “the most important factors in most cases, but not necessarily every case.” County of Maui, Slip Op. at 16. These factors leave a tremendous degree of uncertainty.
The majority expects that courts will provide guidance through subsequent lower court decisions. The Clean Water Act itself also is identified as providing guidance in the sense that decisions should “not create serious risks either of undermining state regulation of groundwater or of creating loopholes that undermine the statute’s basic federal regulatory objectives.” County of Maui, Slip Op. at 16. EPA is also expected to provide guidance (within statutory boundaries) on how to implement this decision through issuance of individual and group permits, development of general rules, and other ways. Id. States will have a critical role to play in like ways. The majority decision essentially dismisses the appealing parties warning that subjecting discharges to navigable water through groundwater to Clean Water Act permitting could require additional permits for as many as 650,000 wells and over 20 million septic systems. “But EPA has applied the permitting provision to some (but not to all) discharges through groundwater for over 30 years. See supra, at 8–9. In that time we have seen no evidence of unmanageable expansion. EPA and the States also have tools to mitigate those harms, should they arise, by (for example) developing general permits for recurring situations or by issuing permits based on best practices where appropriate. See, e.g., 40 CFR §122.44(k) (2019).” Id. at 17-18. It is noted that judges could mitigate this “hardship” or “injustice” when they “apply the statute’s penalty provisions.” Id.
In summary, the majority decision recognizes that “a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as revealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement,§301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.” County of Maui, Slip Op. at 18. Because the Ninth Circuit decision applied a different standard that that of the majority decision, the decision of the Ninth Circuit was vacated and the case remanded for further proceedings consistent with the majority decision.
The majority decision identifies considerations for when Clean Water Act permits could be required for discharges of pollutants from point sources occurring to groundwater. The decision likely will result in significant litigation, and it is unlikely that its full ramifications will be known before years of litigation. This decision does not touch on larger questions impacting regulation of discharges from point sources under the Clean Water Act, such as the definitions of “point source” and “navigable waters” that have also been the subject of extensive litigation and recent developments. Those related issues are likely to result in additional litigation that will impact on this the full implications of the present decision.
