Supreme Court Ends Debate Over the Reach of Clean Water Act Permitting

Apropos of the ongoing celebrations for the 50th anniversary of Earth Day, the U.S. Supreme Court today released its opinion in the Clean Water Act case of County of Maui v. Hawaii Wildlife Fund, et al.  Justice Breyer delivered the majority opinion, joined by Justices Roberts, Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justices Thomas and Gorsuch, as well as Justice Alito, filed dissenting opinions.

The Court’s analysis addresses the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source – in this case, groundwater.  The debate on this issue has dragged on for many years in many forums, and the varying court decisions on the topic have left affected parties feeling unsettled about where the regulatory line should be drawn.  Now we know – or, now it’s considerably clearer.

The Court particularly focuses on the word “from” in the phrase “from a point source” and settles on a position narrower than the Ninth Circuit’s interpretation, but broader than the “total exclusion of all discharges through groundwater” described by the Petitioner:

The [Clean Water Act’s] words reflect Congress’ basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater.  The reading of the statute that best captures Congress’ meaning, reflected in the statute’s words, structure, and purposes, is that a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.

The Court acknowledges the “broad terms” of its holding and emphasizes that in each case, determining whether there is “the functional equivalent of a direct discharge” will involve a fact-specific analysis of circumstances such as:

(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, or

(7)       the degree to which the pollution (at that point) has maintained its specific identity.

In the Court’s view, “[t]ime and distance will be the most important factors in most cases, but not necessarily every case.”  While the Court does not clearly describe how to handle “middle instances,” the Court anticipates that additional guidance and more refined principles will come through individual decisions of courts, the underlying statutory objectives, and administrative guidance of EPA.

For a copy of the full opinion, please click here.

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