Last week, on April 23, 2020, for the first time the Supreme Court of the United States ("Supreme Court") determined that the Clean Water Act ("CWA") requires a permit "when there is the functional equivalent of a direct discharge" of a pollutant from a point source through groundwater into navigable waters ¹. In holding so, the Supreme Court overruled the Ninth Circuit's broad "fairly traceable" standard and rejected narrower interpretations by the County of Maui, the Environmental Protection Agency ("EPA"), and the Solicitor General. 

Maui operates a wastewater facility that pumps partially treated sewage water from the plant into the groundwater. The treated water travels through the groundwater and eventually reaches the Pacific Ocean. In response to a suit brought by multiple environmental groups, the United States District Court of Hawaii was asked whether the CWA required Maui to obtain a permit when the pollutant was not directly discharged into a "navigable water" (defined in the CWA as waters of the United States). The District Court ruled that Maui was required to obtain a permit because the route the water took from the plant to the ocean was "clearly ascertainable," making the discharge functionally the same as a direct discharge into the Pacific Ocean. 

On appeal, the Ninth Circuit Court of Appeals ("Ninth Circuit") affirmed the District Court's ruling but modified the standard by stating that a permit was required if the pollutants were "fairly traceable" from the origin. Other Circuit Courts had previously reviewed this issue and created different standards. For example, the Fourth Circuit Court of Appeal required permits only when there was a "direct hydrological connection," while the Sixth Circuit Court of Appeal excluded discharges that traveled through groundwater from permit requirements altogether. 

The Supreme Court granted certiorari to resolve this split among the federal circuit courts as to what standard should apply when requiring a permit for pollutant discharge under the CWA. First, the Supreme Court rejected the Ninth Circuit's "fairly traceable" standard. The Court held that this would give overly broad authority to the EPA, and that Congress intended authority to regulate groundwater pollution to be left in the states' hands. The Court concluded that this standard was so broad it could include "navigable waters carried on a bird's feathers" or "100-year migration of pollution through 250 miles of groundwater." 

On the other hand, the Supreme Court rejected the stricter standard proposed by Maui and the Solicitor General. They argued that if, at any point, the polluted water traveled through groundwater, then a permit was not required under the CWA. The Court was concerned that, under this standard, a loophole would be created that would allow for an entity to avoid permitting requirements by allowing the pollutant to travel through just a few feet of groundwater before entering into navigable water. 

After rejecting both standards, the Supreme Court charted a middle ground and created a balancing test. The Court held that a permit is required under the CWA when there is either a direct discharge or the functional equivalent of a direct discharge of pollutant into navigable waters. The Court provided seven factors to consider in determining what constitutes a functional equivalent: 

Of these seven factors, the Court explicitly stated that the two most important factors to consider are time and distance. When pollutants travel quickly through a few feet of groundwater into a navigable water, the permitting requirements would clearly apply. However, if a "pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply." 

In developing this factors test, the Court sought to further Congress' intent when enacting the CWA while also protecting States' rights to regulate groundwater so long as it does not affect a navigable water. The Court recognized that both the more definitive standards provided by Maui and by the Ninth Circuit were "easier to administer"; however, these positions were inconsistent with Congress' objectives in enacting the CWA and were thus inappropriate.  

Based on Supreme Court's new standard, industry, local governments, and anyone else discharging pollutants from a point source into groundwater, that could possibly migrate into a navigable water, will need to consider if a permit will be required by the CWA. Stearns Weaver Miller's Land Development, Zoning & Environmental team has extensive experience advising clients on all matters related to CWA regulations and permitting. For more information, please contact us.