202005.14
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Clean Water Act Applies to Groundwater Discharges

In County of Maui v. Hawaii Wildlife Fund (“Maui”), the U.S. Supreme Court held that the Clean Water Act (“CWA”) 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.” Put differently, a permit is required “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” This is the first time the Court has addressed whether the CWA permit requirements apply when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source.

The Court offered little guidance to regulated entities, regulators, and environmental groups now faced with determining whether an indirect discharge is the functional equivalent of a direct discharge. The Court offered a list of seven factors for the lower courts and USEPA to consider, noting that transit time and distance traveled will likely be the most important factors in most cases. The Court illustrated this approach using two extreme hypotheticals, finding that permitting requirements would clearly apply if a pipe ends a few feet from navigable waters, and likely would not apply if a pipe ends 50 miles from navigable waters.

The Court then recognized that this approach “does not, on its own, clearly explain how to deal with middle instances.” Instead of detailing a framework to deal with middle instances, the Court passed the buck to lower courts to deal with on a case-by-case basis. Quoting Justice Alito’s dissenting opinion, “the Court’s advice [to lower courts], in essence, is: ‘That’s your problem. Muddle through as best you can.” This sums up the Court’s jurisprudence in the area of water and wetlands regulation since the now infamous 4-1-4 decision in Rapanos v. United States.

Testing the Waters

The Court’s decision in Maui developed a middle ground between the decisions of two circuit courts of appeals that now need to revisit their previous decisions. Maui was remanded to the Ninth Circuit Court of Appeals for further proceedings. In that case, the County of Maui operates a wastewater reclamation facility on the island of Maui, Hawaii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water (i.e. pollutants) through four wells hundreds of feet underground (i.e. point sources). This effluent, amounting to about 4 million gallons each day, travels roughly a half mile through groundwater (i.e. a non-point source) to the ocean (i.e. navigable waters). Previously, the Ninth Circuit held that the County needed a CWA permit because the pollutants entering the ocean were “fairly traceable” to the point source. Therefore, the Ninth Circuit must now do what the Supreme Court couldn’t––determine whether pollutants travelling roughly a half mile through groundwater to the ocean is the functional equivalent of pollutants discharging directly into the ocean.

The Fourth Circuit Court of Appeals will also need to reconsider its decision in Kinder Morgan Energy v. Upstate Forever. On May 4, 2020, the Court granted certiorari in Kinder Morgan, vacated the Fourth Circuit’s decision and remanded the case for further consideration in light of Maui. Kinder Morgan operates the Plantation Pipeline, a 3,100-mile underground pipeline network that runs from Louisiana to Washington, DC. A portion of that pipeline in Belton, South Carolina ruptured and spilled roughly 370,000 gallons of petroleum products into the soil and groundwater, eventually traveling roughly 1,000 feet to nearby navigable waters. Kinder Morgan repaired the cracked pipeline, but petroleum continued to travel though groundwater to navigable waters. The Fourth Circuit previously found that the CWA applied because there was a “direct hydrological connection” between the groundwater and navigable waters. Now the case will be reviewed applying the less stringent functional equivalent standard.

Maui’s Effect on CWA Administration and Groundwater Regulation

Although it is unclear how lower courts will apply the new standard, environmental groups are praising the decision. USEPA now faces the new challenge of evaluating and enforcing compliance with the CWA with respect to groundwater discharges. Prior to Maui, USEPA took the stance that a release of pollutants to groundwater is not subject to the CWA. The Court disagreed because that interpretation created a loophole allowing polluters to sidestep the CWA by moving their pipes back a few feet so that pollutants travel through groundwater before being released into navigable waters. Regulated entities also face uncertainty as to how the Maui decision will impact their operations. In New York, a State Pollutant Discharge Elimination System (“SPDES”) permit is required for groundwater discharges. Whether Maui will impact New York’s SPDES permitting program remains to be seen.