By Steve Jones
Supreme Court Requires Clean Water Act Permit for Groundwater Pollution that is the “Functional Equivalent” of a Direct Discharge.
On April 23, 2020, in a 6-3 decision, the U.S. Supreme Court held that the Clean Water Act requires a permit “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge.” The decision means that releasing contaminants to groundwater can require the discharger to obtain and comply with an NPDES permit. Such discharges could be purposeful – for example, using an injection well to dispose of industrial or municipal wastewater or mine dewatering effluent – or they could be passive, such as seepage from leaky pipes in a wastewater transmittal system. But in the event the pollutants transmitted through groundwater end up in a “water of the United States” in the same manner as if they had been directly discharged, an NPDES permit may be required.
The Supreme Court’s decision was issued in the case of County of Maui v. Hawai’i Wildlife Fund, et al., S. Ct. Case No. 18-260, 2020 WL 1941966 (Apr. 23, 2020); a copy of the opinion can be viewed by following this link. The opinion was authored by Justice Stephen Breyer, joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan and Kavanaugh. Justice Kavanaugh wrote a concurring opinion and Justice Thomas and Justice Alito filed dissents, with Justice Gorsuch joining in Justice Thomas’ dissent.
The case originated in 2012 after several environmental groups claimed that the County of Maui required a Clean Water Act permit to discharge approximately 4 million gallons a day of treated wastewater into the Pacific Ocean via deep underground wells. The District Court for the District of Hawai’i held that, because the “path to the ocean is clearly ascertainable,” the discharge into the groundwater was “functionally one into navigable water,” triggering the need for a discharge permit. While the Ninth Circuit Court of Appeals affirmed, it articulated the applicable standard somewhat differently, requiring a permit when “the pollutants are fairly traceable from the point source to a navigable water.”
In the Supreme Court, both the County of Maui and the United States Solicitor General argued that the Clean Water Act established a bright line test – if there was any “nonpoint source” between the point source and the receiving waters, e.g., rainwater or groundwater, then the Clean Water Act did not require a discharge permit.
The Supreme Court drew its line between the Ninth Circuit’s standard and the total exclusion urged by the County of Maui and the United States. The Court rejected the notion that the Clean Water Act regulates all discharges that are “fairly traceable” to the release of pollutants, noting that this would “allow EPA to assert permitting authority over the release of pollutants that reach navigable water many years after their release.” Pointing to the broad range of regulations of nonpoint pollution developed by the States, the Court rejected an interpretation that would interfere with the States’ “traditional regulatory authority.” However, the Court viewed the bright-line test as “too narrow,” potentially leading to absurd results: while a pipe that “spews pollution directly into coastal waters” would require a permit, the permit could be avoided simply by “mov[ing] the pipe back, perhaps only a few yards, so that the pollution must travel to at least some groundwater before reaching the sea.”
The Court also rejected EPA’s Interpretive Statement of the Clean Water Act issued on April 23, 2019, failing to accord EPA’s reading Chevron deference. Neither the parties nor the Solicitor General had argued for such deference, and the Court noted that, not only had EPA “changed its mind about the meaning of the statutory provision,” but EPA’s reading of the statute “would open a loophole allowing easy evasion of the statutory provision’s basic purposes.”
Ultimately, the Court adopted a standard very close to that used by the District Court, holding that a permit is required “when there is a direct discharge from a point source into navigable waters or where there is the functional equivalent of a direct discharge.” Recognizing that a wide range of factors could affect what constituted a “functional equivalent” of a discharge, the Court remanded the case back to the Ninth Circuit, noting that it would be necessary for lower courts to “provide guidance through decisions in individual cases.” In future cases, “[t]ime and distance [from the initial discharge] will be the most important factors in most cases, but not necessarily every case.”
As a practical matter, following the Supreme Court’s decision, persons, businesses or industrial operators that discharge to groundwater should determine whether those discharges could impact waters of the United States, i.e., navigable streams, rivers, lakes, the ocean, wetlands, and other property with a hydrologic connection to such waters.
 The National Pollutant Discharge Elimination System (NPDES) permit is the general permit governing the discharge of pollutants to waters covered by the Clean Water Act.
 The Clean Water Act governs discharges to “waters of the United States” which is a term of art under the Act. Such waters include “navigable waters,” all tributaries to navigable waters, adjacent wetlands and any other waters with a “significant nexus” to navigable waters.
 Hawai’i Wildlife Fund v. County of Maui, 24 F. Supp.3d 980, 998 (D. Haw. 2014).
 Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737, 749 (9th Cir. 2018). The Ninth Circuit stated that determining when a connection between a point source and navigable waters was “too tenuous to support liability” was a question it left “for another day.” Id.
 County of Maui, 2020 WL 1941966, at *4 (quoting Petitioner’s Brief at 27-28 and citing Solicitor General’s Brief at 12).
 Id. at *5
 Id. at *6 (citing nonpoint regulations adopted by the States of California, Maine, and Oklahoma).
 Id. at *7
 “Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants From a Point Source to Groundwater,” 84 Fed. Reg. 16810-01, 40 CFR Part 122, 2019 WL 1765169 (April 23, 2019).
 County of Maui, 2020 WL 1941966, at *8. The term “Chevron deference” refers to the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), which held that a court should not ordinarily substitute its construction of a statute for a reasonable interpretation made by an administrative agency unless the interpretation was arbitrary, capricious or manifestly contrary to the language of the statute.
 Id. at *7-8. In his dissent, Justice Thomas “agree[d] that the EPA’s interpretation is not entitled to deference for at least two reasons: No party requests it, and EPA’s reading is not the best one.” Id. at *15 (Thomas, J., dissenting).
 Id. at *9 (italics in original opinion).
 Id. at *10.
Steve Jones handles environmental matters in both the litigation and transactional arenas. He has litigated cases under every major environmental statute, including CERCLA, RCRA, the Clean Water Act and Clean Air Act, in both citizen suits and environmental enforcement actions brought by state and federal agencies.