Supreme Court Rules Discharges To Groundwater Could Require Clean Water Permit

For the second time this week, the United States Supreme Court surprised environmental groups when it held in County of  Maui v. Hawaii Wildlife Fund that the Clean Water Act permitting requirements applied not only to direct discharges of pollutants from point sources but also to discharges to groundwater that are the “functional equivalent” of direct discharges.

The issue at the center of the dispute was if a Hawaii county wastewater injection facility should have obtained a permit before releasing pollutants into groundwater that later reached the Pacific Ocean. The Court of Appeals for the Ninth Circuit had ruled that Maui County’s Lahaina Wastewater Reclamation Facility was subject to the Clean Water Act permitting requirements because the pollution in the ocean was “fairly traceable” to the facility’s wells.” The case was remanded back to the appeals court to revisit its determination using the test articulated by the majority.

Interestingly, none of the parties to the litigation had proposed the concept of a “functional equivalent” of a direct discharges from point sources in their briefs. Instead, it was Justice Breyer, who wrote the majority opinion, who first raised what amounted to a middle ground formulation as a potential way to resolve the case during oral argument.

The majority opinion also not did not engage in any Chevron deference analysis even though the relevant statutory language was somewhat ambiguous as to its precise application. This was because none of the litigants had raised this issue.

Justice Brett Kavanaugh joined the majority but wrote a separate concurring opinion. Justices Clarence Thomas and Samuel Alito wrote dissenting opinions. Justice Neil Gorsuch joined Thomas’ dissent. The dissenting opinions were largely based on a textual reading of the statute  but differed on the meaning of the words “any” and “addition” of a pollutant. Justice Alito asserted that Justice Thomas’s interpretation was too narrow and could lead to some discharges that should be covered under the Act being excluded from the CWA permitting program.

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