Despite guidance from the Supreme Court, the future of water regulation remains uncertain.
One day after Earth Day’s 50th anniversary, environmentalists had more than just the holiday to celebrate. Instead of gutting the Clean Water Act as many had feared, the U.S. Supreme Court handed down a surprisingly measured decision in County of Maui v. Hawaii Wildlife Fund, largely preserving the jurisdictional reach of the iconic law.
Yet in the wake of the decision, the courts and the U.S. Environmental Protection Agency (EPA) will almost certainly continue their decades-long interpretive tussle.
At issue in County of Maui was the scope of the Clean Water Act’s authority over discharges conveyed to navigable waters through groundwater rather than directly through a “point source,” such as a pipe, channel, or some other discrete conveyance. In a 6-3 decision, the Court held that the law requires a permit for a discharge through groundwater if it is the “functional equivalent” of a direct discharge from a point source. Notably, the majority included two of the Court’s conservative justices.
This decision came in what some deemed the Clean Water Act “case of the century.”
For over 30 years, the County of Maui’s wastewater treatment plant had been discharging approximately four million gallons per day of partially treated sewage through wells into groundwater that carried the sewage to the ocean. Due, in part, to this polluted groundwater discharge, a U.S. Geological Survey study found that coral reefs in the area were degrading at an accelerated pace.
In 2012, environmental groups brought a citizen lawsuit against the county for discharging pollutants into navigable waters without a Clean Water Act permit. Although the federal district court and U.S. Court of Appeals for the Ninth Circuit ruled in favor of the environmental groups, the Supreme Court granted the county’s petition for review, raising concerns that the Court’s conservative wing might further restrict the law’s protections.
The parties did not dispute that the county was pumping partially treated sewage into groundwater through a point source—the wells—and that this partially treated sewage reached a navigable water—the Pacific Ocean. The only question before the Court was whether the Clean Water Act requires a permit for this type of discharge.
In answering this question, the Supreme Court affirmed the lower courts’ decisions. The Court, however, rejected the Ninth Circuit’s proposed test—that the Clean Water Act requires a permit when “pollutants are fairly traceable from the point source to a navigable water,” as well as the tests put forward by those on both sides of this case.
Instead, the Court fashioned its own “functional equivalent” test, articulating several potentially relevant factors to consider when determining what constitutes a functional equivalent of a direct discharge. Although the Court stated that transit time and distance traveled will be the most important factors in most cases, it emphasized that the specific facts of a given case would determine the relevance and relative weight of each factor. This test is probably the most expansive interpretation that one could reasonably expect given the Court’s current composition.
Predictably, some business interests have reportedly complained that this case-by-case approach and the absence of a bright line rule will be “devastating” for industry. But the Court’s decision is a moderate approach, one that is consistent with past judicial and EPA interpretations of the Clean Water Act’s scope and unlikely to result in significant increases in litigation.
As noted in the pivotal Supreme Court decision Rapanos v. United States and restated in County of Maui, narrow readings favored by industry—such as the county’s proposed means-of-delivery test—are not consistent with the expansive language of the Clean Water Act, which prohibits “any addition of any pollutant to navigable waters.”
Furthermore, contrary to the position the Solicitor General adopted in its brief to the Supreme Court, EPA had consistently posited for decades that groundwater as a conveyance can be regulated under the Clean Water Act. EPA endorsed this interpretation until the current Administration issued an interpretive statement last year, which, unsurprisingly, was consistent with President Donald J. Trump’s broader agenda to eviscerate EPA’s authority.
In fact, earlier in this case, EPA filed a brief stating that “EPA’s longstanding position is that a discharge from a point source to jurisdictional surface waters that moves through groundwater with a direct hydrological connection comes under the purview of the Clean Water Act’s permitting requirements.” EPA cited rulemakings dating back to 1990 to support its assertion.
Although future cases undoubtedly will further clarify the parameters of the functional equivalent test, the Court has provided important guideposts.
First, in rejecting the tests offered by both parties, the Court made clear that mere traceability—only requiring that a pollutant can be traced from a point source to a navigable water—is too broad. This standard is over-encompassing even if the test requires that the initial discharge of pollutants is the proximate cause of the addition of pollutants to a navigable water.
On the other hand, the Court also rejected the county’s proposed “means-of-delivery” test, making clear that discharges can meet the functional equivalent test even if the point source itself is not the means of delivery to the navigable water, as was the case in County of Maui.
Second, the Court offered two hypotheticals to help define the upper and lower bounds of the test. At one end is a discharge from a pipe that travels a few feet through groundwater before reaching a navigable water, which would require a permit. At the other end is a discharge from a pipe that travels 50 miles through groundwater, mixes with other materials, and only reaches a navigable water after many years. In this circumstance, a permit would not likely be required.
Third, the Court’s opinion emphasized overarching principles that should guide lower courts in applying the functional equivalent test. The Court stressed the importance of advancing congressional intent and underlying statutory objectives, in particular, balancing the protection of waters of the United States (WOTUS) with the preservation of states’ regulatory authority over groundwater.
Finally, and refreshingly, the Court has grounded its test’s factors in scientific evidence.
County of Maui’s approach, with its emphasis on congressional intent and science-based evidence, should also shape the fate of the Trump Administration’s controversial WOTUS rule, published only two days before the Court’s decision. Most notably, the Administration’s changes to the EPA’s definition of what qualifies as a protected water would exclude water bodies clearly included under the Court’s interpretation of protected waters as delineated in County of Maui.
Despite County of Maui, exactly how far the protections afforded by the Clean Water Act will reach remains uncertain. For the immediate future, whatever EPA guidance emerges will depend on the inclination of its Administrator, Andrew Wheeler, a former coal lobbyist. If a new administration does not take over in 2021, EPA’s latest revision to the WOTUS rule will undoubtedly make its way through the courts and possibly into the hands of a conservative-leaning Supreme Court.
As with many events around the globe, much of the future of the federal water policy hinges on what transpires at the ballot box this November.
This essay is part of a series entitled The Supreme Court’s 2019-2020 Regulatory Term.