Supreme Court Decision Creates New Standard for Clean Water Act NPDES Permit

Today, the Supreme Court announced a 6-3 decision in the case of County of Maui v. Hawai’i Wildlife Fund. The decision involves whether a federal permit is required under the Clean Water Act when pollutants flow through groundwater before reaching surface waters that are subject to regulation under the Act. The Court held that a permit is required when the discharge to groundwater is the “functional equivalent of a direct discharge” to surface waters.
 
The Court identified time and distance as the primary factors for determining whether a discharge is the “functional equivalent” of a direct discharge, but also cited a number of other factors that would be material to a decision, including:

• the nature of the material through which the pollutants travels,
• the extent to which the pollutant is diluted or chemically changed as it travels,
• the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source,
• the manner by, or area in which, the pollutant enters the navigable waters and
• the degree to which the pollution (at that point) has maintained its specific identity.

The Court’s decision does not provide a clear answer for when discharges through groundwater require a permit. It does, however, establish a national standard. The “functional equivalent” test is the third standard that has been applied in the Maui case. At the District Court level, the court held that a discharge to groundwater would require a permit if the groundwater acted as conduit and conveyed the discharge to surface waters. The U.S. Ninth Circuit Court of Appeals held that a discharge would require a permit if it was fairly traceable to the original point source. Other circuits adopted alternative standards. “Functional equivalent” is now the law nationally.
 
The decision can be characterized as a win for Maui because it narrowed the Ninth Circuit’s rationale. Nonetheless the multi-part test adopted by the Court leaves dischargers in a difficult situation. Facilities and infrastructure that have a connection to groundwater may now require federal Clean Water Act permits if pollutants from those facilities flow through groundwater to surface waters. The rationale implicates pipelines that may leak, infiltration basins that have a groundwater connection, and stormwater-related low impact development projects and green infrastructure – among other things.
 
The Court recognized the difficulty of determining when a permit is required under the “functional equivalent” test and admonished district judges to “exercise their discretion” and “mitigate hardship or injustice when they apply the statute’s penalty provision” in light of “the complexities inherent to the context of indirect discharges through groundwater….” This direction to lower courts may temper an expansive application of the test and its impact on dischargers that were not previously required to obtain a permit. It is also worth noting that the Court viewed the “functional equivalent” test as being more limited than the “fairly traceable” test adopted by the Ninth Circuit.
 
More information on the origins of this case can be found in our previous Legal Alert here. 
 
*Best Best & Krieger represented a coalition of water interests as amici counsel in this case.
 
If you have any questions about the decision or its impact on permitting requirements, please contact the authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
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