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July 2020

Restoring The Integrity of The Nation’s Waters One Supreme Court Ruling at a Time

The word “from” clearly has a broad connotation.  For example, imagine running into your new neighbor, who recently moved from out-of-state, for the first time in her driveway as she returns from the grocery store.  If you were to ask her, “where did you come from?” her response would likely depend on her interpretation of your question.  If she believes your question pertains to her recent move, she would likely respond, “from New York.”  However, she could also respond “from Bob’s Market,” if she believes that your question pertains to her returning home.  Neither response is necessarily wrong, which is why the word “from” can cause friction when interpreting its use in a statute.   

In the recent case of County of Maui v. Hawai’i Wildlife Fund, the word “from” was the linguistic focus of the Supreme Court’s interpretation of the 1972 Clean Water Act (“CWA”).

At issue was a rule under the CWA that forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (“EPA“).  In 2012, several environmental groups brought a citizens’ CWA lawsuit against the County of Maui (“Maui”) for discharging a pollutant to the Pacific Ocean, without the required permit from the EPA.

Maui’s Struggle With the CWA

In the 1970s, Maui built the Lahaina Wastewater Reclamation Facility, which receives, treats, and then discharges sewage wastewater.  This wastewater then travels a half mile or so, through groundwater, to the largest navigable waters on Earth - the Pacific Ocean.  The primary issue in County of Maui was whether the CWA requires a permit from the EPA when pollutants that originate from a point source are conveyed to navigable waters by a nonpoint source (e.g., groundwater).     

The parties noticeably disagreed about scope and meaning of the word “from,” primarily when a pollutant is considered “from” a point source.  The environmental groups argued a permit is required as long as the pollutant is “fairly traceable” to a point source, even if the pollutant travels long and far, say through groundwater, before it reaches navigable waters. Maui, on the other hand, argued in favor of the “bright-line test;” where a point source must be “the means of delivering pollutants to navigable waters.” Thus, according to Maui, if a nonpoint source (e.g., groundwater) “lies between the point source and navigable water,” then the permit requirement “does not apply.”    

In granting summary judgment for the environmental groups, the District Court held that since a considerable amount of effluent from the wells ended up in the Pacific Ocean, the discharge from Maui’s wells into groundwater was “functionally one into navigable water.”   

In affirming the District Court’s decision, the Ninth Circuit Court of Appeals held that a permit is required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into navigable.”  

The Supreme Court’s Holding

The Supreme Court inevitably found the interpretations offered by the parties and the lower courts were far too extreme.  The Court determined that Congress did not intend to provide the EPA with broad authority to require a permit in every circumstance when a pollutant finds its way to navigable waters.  Further, as to groundwater pollution, the Court found that Congress intended to leave substantial responsibility to the States.  For example “groundwater” is not explicitly included under the CWA‘s general EPA permitting provision.  Overall, the CWA reflects “Congress’ aim to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the State’s longstanding regulatory authority over land and groundwater.”

The Supreme Court ultimately rejected Maui’s argument that permits are not required if there is any amount of groundwater between the end of the pipe and the edge of the navigable water.  Such an interpretation would create a “large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”  In interpreting the statute, the word “from,” coupled with the word “to,” shows that Congress was referring to a destination (“navigable water”) and an origin (“any point source”).  Thus, in maintaining the balance between federal regulation and States’ authority, the Supreme Court held that “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”  “From any point source” can be when a point source directly pollutes into navigable waters, or when the pollutant “reaches the same result through roughly similar means.”  In providing guidance on whether agencies are required to seek a permit under the CWA, agencies may consider relevant matters such as transit time, distance traveled, the nature of the material through which the pollutant travels, the extent to which the pollutant is dilutes or chemically changed through travel, or the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source.

The Ninth Circuit’s ruling was vacated and the case has been remanded for further proceedings consistent with the Supreme Court’s opinion.

Impact of Decision

As a result of the Supreme Court’s decision in County of Maui, the case will return to the lower court to confirm whether Maui’s addition of pollutants through groundwater is the functional equivalent of a direct discharge from the point source to navigable waters.  In light of the factors regarding the transit time, amount of pollution, and distance from the groundwater into the Pacific Ocean, it is expected the lower court will rule that Maui is required to obtain a permit under the CWA.

Should the lower court rule accordingly, permits may be required for hundreds of thousands of wells and for millions of septic systems used in many Americans’ homes.  The permits will enforce the protection of navigable streams, rivers, oceans, and coastal waters from pollutants, such as sewage discharge or solid waste.

Justice Breyer authored the majority opinion, which was joined by Chief Justice Robert and Justices Ginsberg, Sotomayor, Kagan, and Kavanaugh.  Justices Alito, Thomas, and Gorsuch dissented.  The Supreme Court’s decision in County of Maui may be found here.

Environmental/Toxic Tort

Nadine A. Hughes
Jason F. Meyer



Environmental/Toxic Tort