The U.S. Supreme Court recently heard oral arguments in County of Maui v. Hawaii Wildlife Fund. The closely-watched environmental law case will determine whether the Clean Water Act (CWA) regulates pollution that reaches surface water via groundwater.

As discussed in greater depth in prior articles, the federal courts of appeal are divided over the scope of the CWA. In County of Maui, the Ninth Circuit Court of Appeals held that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County of Maui was liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater than de minimis levels.

The Ninth Circuit’s decision is at odds with the Sixth Circuit, as well as the interpretation adopted by the Environmental Protection Agency (EPA) under President Donald Trump.  According to EPA guidance issued in April, discharges of pollutants to groundwater are “categorically excluded” from the CWA’s permitting requirements.

Oral Arguments in County of Maui v. Hawai’i Wildlife Fund

Based on oral arguments, determining the reaches of the CWA will not be an easy decision for the Supreme Court either. Chief Justice John Roberts asked Maui County’s attorney whether its interpretation of the CWA meant that any pollutant that mixed with groundwater would remove jurisdiction of the statute’s permitting program. He responded "yes" but stated that other state and federal regulations could address the issue.

In response, Justice Stephen Breyer stated Maui’s interpretation would create “an absolute road map” for polluters seeking to avoid the CWA’s permitting requirements. Expressing concern about the potential loophole, Justice Breyer speculated that a polluter could “just cut off the pipes or whatever five feet from the ocean” and have the discharge go into the ground rather than directly into the water.

According to Justice Elena Kagan, that could not have been Congress’ intent. “Nobody would ever have to go through that process of getting a permit if they knew that they could do something like what Justice Breyer was suggesting, just stop the pipe five feet before the ocean,” she said.

The Court also asked tough questions of the environmental groups who are calling for a broad interpretation of the CWA. Several justices expressed concern that average Americans could face liability under the CWA for common occurrences, such as septic tank overflows.  “They would be violating the Clean Water Act for lack of a permit and would be subject to all the penalties that go with that for every day of the violation?” asked Justice Samuel Alito. In response, counsel for the Hawai’i Wildlife Fund suggested it was unlikely anyone could trace the pollution back to a single septic tank.

Much of the debate also centered on the meaning of the word “from.” The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” According to the County of Maui, the treated waste reaching the ocean came “from” the groundwater. Meanwhile, the environmentalists contend it came “from” the wells, which brings it under the CWA’s permitting requirements. “When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house,” said a lawyer representing the environmentalists.

A Justice Department attorney argued that the analysis is not so straightforward. “If at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle,” he said.

In the end, it appears that many of the justices were looking to find middle ground. Justice Breyer even suggested a test that would ask whether the migration of pollutants is the “functional equivalent of a direct discharge.” However, some justices questioned whether such a test would be any more concrete than the test devised by the Ninth Circuit, making it is unclear if they will be successful in reaching a compromise.

Federal Court Rules in First CWA Case After EPA Interpretive Statement

While the lowers courts wait for the Supreme Court to rule, many CWA suits are ongoing. On November 26, a Massachusetts federal district court judge became the first to address the impact of the EPA’s April 2019 Interpretive Statement clarifying the application of CWA permitting requirements to groundwater.  According to the EPA, discharges of pollutants to groundwater are “categorically excluded” from the CWA’s permitting requirements.

In Conservation Law Foundation Inc. v. Longwood Venues and Destinations Inc. et al., the court held that the CWA does not apply to pollution that travels through groundwater into the Atlantic Ocean. In reaching his decision, Judge William Young found that the CWA is “shot through with irreconcilable ambiguity.” He wrote:

The CWA confers a breathtaking mandate on the EPA to defend the waters of the United States from identifiable contaminators, yet it also takes pains to leave groundwater regulation to the states. Either of these policy choices, extended to its logical endpoint, would defang the other. Exactly how Congress wished to strike the federal-state balance here is mysterious.

In light of the ambiguity, Judge Young turned to the EPA to supply a reasonable construction in accordance with Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). “The Court rules that EPA's interpretation is a permissible construction of the CWA,” Judge Young wrote. “The Court affords Chevron deference to EPA's interpretation and holds that discharges into groundwater are categorically excluded from the CWA's regulatory regime, irrespective of any hydrological connection to navigable waters.”

While Judge Young questioned the wisdom of EPA's "categorical rule," he nonetheless found that it was the EPA’s decision to make and that the decision was not unreasonable given the facts of the case. “Drawing the line is a matter firmly within the EPA's expertise, however, as is the decision to prefer a categorical exclusion when that is consistent with the statute's text and purpose,” he wrote.

What’s Next?

The Supreme Court’s decision is expected before the term ends in June 2020. Given the potential ramifications for the regulated community, the attorneys of the Scarinci Hollenbeck Environmental Law Group will continue to closely monitor the case, and we encourage readers to check back for updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.