Environmental Law & LitigationThe Clean Water Act: Supreme Court’s Second Decision This Week

April 24, 20200

This week, coincidentally the week of Earth Day 2020, saw two Supreme Court decisions on two different federal environmental legislation issues. The Court’s decision of April 21, 2020 , which we discussed in our last blog post, relates to the Superfund law. The Court’s more recent April 23, 2020 opinion assesses the Clean Water Act of 1972 (“CWA”).

This decision, County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., moves toward clarification on exactly when one needs a permit under this federal environmental legislation. To assist with understanding the Court’s clarification, we review the law, definitions for certain terms, and what the decision means, below.

What the Clean Water Act Does

Like Superfund, this country’s environmental movements pushed for amendments to the “first major water pollution law” in the country. The amended law, now known as the CWA, was enacted through the bipartisan efforts of a Democrat-controlled Congress and Republican President Richard Nixon. Superfund and the CWA are also both administered by the EPA. The sweeping amendments created a system to regulate previously-unencumbered dumping of pollutants into waterways through a permit system, among other things. At the time of its passage, two-thirds of the waterways in the U.S. were unsafe for fishing and swimming.

All About Those Definitions

Like many pieces of federal environmental legislation, we have to know the definitions of terms discussed in a case’s opinion. In County of Maui, Hawaii, the Supreme Court justices wrote that they had to determine “. .  . whether the [CWA] ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” This question invokes 4 statutory definitions, which are:

  • Pollutant – includes “dredged spoil, solid waste, incinerator residue, sewage, garbage, . . . and industrial, municipal, and agricultural waste discharged into water.”
  • Point Source – includes “any discernible, confined and discrete conveyance.”
  • Discharge of a Pollutant – where the question says “conveys,” it brings into question whether a “discharge” occurred under the CWA. “Discharge of a pollutant” includes “any addition of any pollutant to navigable waters from any point source.”
  • Navigable Waters – “means the waters of the United States, including the territorial seas.”

The CWA prohibits the discharge of pollutants by a person or entity into the navigable waters of the U.S. by a point source without a permit.

County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.

 With this background and definition run-through in mind, let’s get to the opinion in the case. The parties were at odds over whether the County of Maui’s discharges of partially treated wastewater into groundwater require a permit from the EPA. The appealing party, the County of Maui, argued that no permit was required because the water it discharges “from” the point source is discharged into groundwater and not a navigable water as defined in the statute. The U.S. Environmental Protection Agency (“EPA”), through the Solicitor General, essentially agreed with this argument.

On the other side, several environmental non-profits argued that the discharges “from” the point source into groundwater nonetheless fall under the federal environmental legislation’s authority. This is because the groundwater flows into the Pacific Ocean. In making this argument, the non-profits interpreted “from” a point source to include discharges that are “functionally [discharged] into a navigable water” because the “path to the ocean is clearly ascertainable.” See Slip Opinion: https://www.supremecourt.gov/opinions/19pdf/18-260_5i36.pdf

This issue created a split in the Circuit Courts of Appeals, meaning that the different appellate courts disagreed on a resolution of this issue. The Supreme Court, though, took a middling approach. By adopting a rule somewhere in between the two parties’ desired outcomes, the Court held that not all groundwater-to-navigable water discharges are outside of the CWA. But, the Supreme Court also stated that there are some discharges that will not fall under the federal environmental legislation’s permit requirement.

While not a bright line rule, the Supreme Court’s reasoning allows courts to consider all of the facts surrounding discharge permitting on a case-by-case basis. Essentially, the Court’s holding means that there will likely be future litigation and rule- or law-making to determine which cases fall under the CWA. The Supreme Court held that the CWA requires a permit for all direct discharges and those that are the “functional equivalent.” It is clear that the justice’s reasoning was guided by several factors, including time and distance.

The attorneys at Desautel LContact our office if you have any questions on the case, its potential impacts on you, or for general CWA permitting questions. Our attorneys are available by phone or email throughout the week.

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