April 23, 2020
Decided April 23, 2020
County of Maui v. Hawaii Wildlife Fund, No. 18-260
Today, the Supreme Court held 6-3 that the Clean Water Act requires a permit for the indirect discharge of pollutants from point sources to navigable waters via nonpoint sources, such as groundwater, if the discharge is the functional equivalent of a direct discharge.
The County of Maui disposes of treated wastewater by injecting it into groundwater through wells. Some of the wastewater eventually reaches the Pacific Ocean. Several environmental groups sued the County under the Clean Water Act, which prohibits the “discharge of any pollutant” into navigable waters without a permit. 33 U.S.C. §§ 1311(a), 1342. This permitting requirement applies only to pollutants discharged into navigable waters from a “point source”—that is, “any discernible, confined and discrete conveyance” such as a “pipe” or “container.” Id. § 1362(12), (14). The requirement does not apply to the discharge of pollutants from nonpoint sources such as groundwater. Although the County’s wastewater entered the Pacific Ocean from a nonpoint source (groundwater), the district court held that the County was required to obtain a permit because the wastewater originated in a point source (the well). The Ninth Circuit affirmed, holding that the indirect discharge of pollutants through a nonpoint source into navigable waters requires a permit if the pollutants are “fairly traceable” from the point source to navigable waters. After the Ninth Circuit’s decision, the EPA issued a new interpretive statement announcing its position that the Act does not require permits for any discharge via groundwater, although it might require permits for other indirect discharges. The United States defended that position and supported the County as an amicus curiae.
Does the Clean Water Act require a permit for the discharge of pollutants that originate from a point source but are conveyed to navigable waters by a nonpoint source?
Sometimes. If the discharge is functionally equivalent to a direct discharge from a point source into navigable waters, then the Clean Water Act requires a permit.
“Whether pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge.”
Justice Breyer, writing for the Court
Gibson Dunn submitted an amicus brief on behalf of Energy Transfer Partners, L.P. in support of petitioner County of Maui
What It Means:
The Court’s opinion is available here.
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