Under the Clean Water Act “point sources” of pollution, those being discharged from a pipe, are required to obtain permits for “any addition of any pollutant to navigable waters.” The County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, only partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean.
Several environmental groups brought a citizens’ Clean Water Act suit, against Maui alleging that Maui was “discharging” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judgment to the environmental groups. Maui appealed to the Ninth Circuit Court which affirmed the lower court’s decision, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749. Maui then appealed to the Supreme Court.
Justice Stephen G. Breyer, delivered the opinion of the Supreme Court. Writing for the majority, Justice Breyer rejected both sides’ positions in the case as too extreme. The Maui and the Solicitor General had argued that discharges into groundwater were never covered under the Clean Water Act, while environmental groups suing the county said the law applied to discharges that “actually and foreseeably reach navigable surface waters.”
The standard from the Ninth Circuit Court was too broad, Justice Breyer wrote. “Virtually all water, polluted or not, eventually makes its way to navigable water,” he wrote. The question courts should ask, he wrote, was whether “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”
The Ninth Circuit’s “fairly traceable” standard could allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release and would include all septic systems and other non-point discharges. But Congress did not intend to provide EPA with such broad authority.
On the other hand, Maui argues that the meaning of “from any point source” is not about where the pollution originated, but about how it got there. Thus, Maui claims, a permit is required only if a point source ultimately delivers the pollutant to navigable waters. The Supreme Court found that Maui’s reading would create a serious loophole in the permitting regime also indicates that it is unreasonable. That argument would allow any discharger to bypass the permitting process by utilizing groundwater as a conveyance.
In the opinion of the majority Justice Breyer wrote;” 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... Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases... Although this interpretation does not present as clear a line as the other interpretations proffered, the EPA has applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope. Pp. 15–18.”
The case was remanded back to the lower court.
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