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County of Maui and the Functional Equivalent Test for Groundwater Discharge

On Thursday, April 23, 2020, the Supreme Court issued its much anticipated opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund (“County of Maui”), No. 18-260, 2020 WL 1941966 (Apr. 23, 2020). The case came to the Supreme Court from the Ninth Circuit, which held that a Clean Water Act (“CWA”) National Pollutant Discharge Elimination System permit is required when “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.” See Hawaii Wildlife Fund v. Cty. Of Maui, 886 F.3d 737, 749 (2018). At issue is a county wastewater facility that discharges effluent into groundwater that eventually makes its way to the Pacific Ocean. Id. at 745-46. The Ninth Circuit determined that such discharges are jurisdictional and require a permit. In doing so, the Ninth Circuit relied, in part, on the fact that a tracer dye test clearly demonstrated how the pollutants passed from the county wastewater facility to the Pacific Ocean. Id. at 749. After the Ninth Circuit’s ruling, the County appealed to the Supreme Court. 

The Supreme Court agreed with the Ninth Circuit to some extent, holding that discharges from a point source to a jurisdictional water that travel through groundwater may require a permit; however, the Supreme Court applied a different test. The Court ruled 6-3 to remand the case back to the Ninth Circuit for reconsideration based on the standard the Court articulated in its opinion. (Justice Breyer authored the opinion and Chief Justice Roberts, and Justices Ginsberg, Sotomayor, Kagan, and Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, which was joined by Justice Gorsuch. Justice Alito also filed a dissenting opinion.)

The Court explained its standard this way: 

We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.

County of Maui, 2020 WL 1941966, at *3. In its analysis, the Court explains that the Ninth Circuit’s “fairly traceable” rule is too broad, but that the dissents’ reading of the word “from” (in the context of “discharge from a point source”) to require that a point source discharge immediately to a jurisdictional water is too limiting. The Court listed seven factors that may be relevant in determining whether a discharge through groundwater remains jurisdictional, which include: 

(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.

Id. at *10. This list is not exhaustive, and the Court made it clear that the application of any of these factors will be dependent upon the specific circumstances of the case at issue. Id. However, it explained that “time and distance are obviously important.” Id. at *9. 

Providing guidance on how to apply this rule going forward, the Court highlighted the importance of the general authority of the States to regulate groundwater. It explained that “[d]ecisions should not create serious risks either of undermining state regulation of groundwater or of creating loopholes that undermine the [CWA]’s basic federal regulatory objectives.” Id. at *10. Essentially, with its opinion, the Court attempts to find the sweet spot between overreaching federal jurisdiction and allowing for unintended loopholes in the CWA’s application. The Court acknowledges that the rule it articulated is not the easiest to administer. Id. at *11. However, it sets its expectation that “district judges will exercise their discretion mindful, as we are, of the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.” Id. at *10. 

This decision may impact certain dischargers of pollutants going forward. We know that the test to be applied is the “functional equivalent” test, and the Court gave us some guidance on factors that may be relevant in determining whether a particular discharge through groundwater qualifies as a functional equivalent. However, as the Court acknowledged, this determination is heavily fact-dependent. It will be up to the state permitting authorities in the first instance to further apply the Court’s decision in making permitting decisions. The Court suggested that guidance from the EPA on how to interpret this jurisdictional issue would be helpful, and it explained that guidance will come as lower courts make decisions in individual cases. Id. For now, though, the Court’s functional equivalent test will have to suffice.