The Supreme Court hands down a landmark Clean Water Act decision in Maui v. HWF
What does the Maui case mean for the Chesapeake Bay?
By: Evan Isaacson & Angela Haren
On April 23, 2020, the U.S. Supreme Court resolved an important Clean Water Act issue that has divided lower courts. The 1972 Clean Water Act (CWA or Act) protects our nation’s surface waters from direct discharges of pollution. The question before the Supreme Court was: does a person need a Clean Water Act permit to discharge pollution into groundwater when that groundwater carries the pollution into a waterway regulated under the Act? In other words, is the discharge of pollution direct enough to be regulated by the CWA? In a 6-3 opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund et al., the Court said yes.
Clean Water Act 101
The Clean Water Act requires a federal permit for any discharge of pollution from a “point source” to a “navigable” surface waters (also called “waters of the United States”). A point source is defined under the Clean Water Act as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel . . . from which pollutants are or may be discharged.” (33 U.S.C. § 1362(12-14)). Groundwater, water that is underground, is not considered a water of the U.S., and therefore not regulated under the CWA permitting program.
The Case
At issue here was whether a Maui-based wastewater treatment plant that pumps about 4 million gallons of treated sewage into the ground through injection wells must be regulated under a Clean Water Act permit. Once injected into the ground through a pipe, the plant’s wastewater travels about half a mile through groundwater before discharging into the Pacific Ocean, which is a navigable waterway, causing harmful algae blooms. Although the County’s own science demonstrated the hydrologic connection between the groundwater and the ocean, the County of Maui argued it did not need a permit because it was discharging into an underground well, not into navigable waters of the U.S.; environmental groups represented by Earthjustice disagreed and argued that Maui was discharging a pollutant into navigable waters in violation of the CWA.
What did the Court decide?
The Court determined that CWA requires a permit if the addition of the pollutants through groundwater is the “functional equivalent” of a direct discharge from the point source into navigable waters.
Most close observers of this case were surprised by the outcome. Many were skeptical that the Court would rely upon a common sense interpretation of the Clean Water Act, as opposed to a narrow “strict construction” interpretation based upon the text of the statute, as urged by the County of Maui, the Environmental Protection Agency (EPA), and the Solicitor General representing the federal government. Overall, this case is a win for the environment and for water quality protection.
In broad terms, the Clean Water Act leaves the regulation of groundwater quality to the states. But this case raised the question of whether that means that any pipe stuck into the ground can thus evade federal regulation regardless of how close that pipe is to surface waters that are clearly subject to CWA jurisdiction. The possibility of opening such a massive loophole to the CWA regulatory regime clearly weighed heavily on a majority of the justices, including several conservative justices who are generally more reluctant to read into statutory purpose or legislative intentions and are especially loath to decide cases that shift power or authority to the federal government and away from the states. The Court recognized that an “evasion of the law” would occur if a source of pollution could simply route its pipes into the ground just short of a stream, lake, or ocean, as had happened in Maui.
With this decision, lawyers and permit writers now have the new legal standard of “functional equivalency” to consider. This standard is more of a common sense principle than a precise metric by which to determine if pollution flowing underground and ultimately seeping into streams or other surface waters is subject to the Clean Water Act and the terms and conditions of a permit.
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Q&A
What does “functionally equivalent” mean?
In the decision itself, the Court acknowledged that this new standard isn’t simple or clear cut. The Court did provide a bit of a roadmap, noting that time and distance will be the most important factors in most cases, but not necessarily in every case. The circumstances the Court acknowledges should be considered are:
- Transit time;
- Distance traveled;
- Nature of material through which the pollutant travels;
- Extent to which pollutant is diluted or chemically changed when it travels;
- Amount of pollutant entering the navigable waters relative to the amount that leaves the point source;
- Manner by or area in which the pollutant enters the navigable waters; and
- Degree to which the pollution (at that point) has maintained its specific identity.
The Court also acknowledges that “courts can provide guidance through decisions on individual cases.” This means that, like many areas of law when it comes to the Clean Water Act, this issue is far from settled. Surely future legal challenges will help to define and shape how the term “functionally equivalent” is ultimately defined as well as the impacts of that definition on the ground.
What does this mean for groundwater regulation in the Chesapeake Bay region?
The CWA leaves it to the states to regulate groundwater pollution. As such, the impacts of this new “functional equivalency” test will be different in the different states in the Chesapeake Bay watershed, because each state protects groundwater differently. Some states, like Maryland and Virginia, expressly define “waters of the state” to include groundwater, thus subjecting groundwater to many or most of the same laws as surface waters. Maryland, in fact, has its own permitting program for groundwater pollution discharges, just like it has for surface water. To learn more about Maryland’s permitting program, see CLA’s guide to Groundwater Permit and Spray Field Advocacy in Maryland.
Other states, like Delaware, do not include groundwater within their definition of “waters of the state” but may have established other laws to provide some degree of regulatory protections to this key source of drinking water. Delaware, for example, directly regulates certain discharges to groundwater, such as systems that spray irrigate wastewater from sewage treatment plants onto agricultural and other fields where it infiltrates into the ground.
The Maui decision is important because it ensures that anywhere in the country pollution flowing through groundwater and directly polluting nearby surface waters will be fully regulated by the state or federal government. But the decision is particularly important in jurisdictions that currently provide little or no protection to groundwater quality. With this decision by the Supreme Court, at least some groundwater will continue to be subject to regulation under the Clean Water Act in certain circumstances.
The decision will also likely create greater scrutiny by developers, engineers, and permitting authorities over whether or not a particular groundwater discharge should be regulated under the Clean Water Act. These entities will need to consider whether a proposed facility should be discharging to groundwater instead of a nearby surface water, and will want to closely examine information about the local soil type, water table levels, geology, and groundwater age. In essence, these permit applicants and permitting authorities will be giving effect to the functional equivalency standard created by the Supreme Court, and concerned citizens will need to be vigilant for projects that are discharging to groundwater when perhaps they shouldn’t be.
Does this mean an individual homeowner’s septic tank will require a CWA permit?
Not necessarily. One of the concerns raised by the government in this case was that there would be a vast and unmanageable expansion of the scope of the CWA, perhaps requiring permits for each of the 650,000 wells like those used by the Maui Wastewater Treatment plant, or for each of the over 20 million septic systems used in many Americans homes. To that point, the Supreme Court noted that EPA has already applied permitting requirements to groundwater for decades, and there hasn’t been evidence of an unmanageable expansion, such as regulation of small residential septic systems.
Generally, septic systems are regulated by local health departments with additional water quality protections in place in some states, implemented by state environmental agencies. The recent Supreme Court decision is likely to only be relevant where large, easily identifiable non-residential systems located adjacent to streams, lakes, or other surface waters are clearly and directly contributing to the degradation of those waters. In unique circumstances such as these, where it is clear and obvious that a few large systems are heavily polluting the surface waters through a direct underground connection, a court may find that such a system would need a Clean Water Act permit or an equivalent degree of protection under state laws. This, in essence is what the Maui case was all about, albeit for a wastewater plant discharging through an underground well, rather than through an underground septic system and leach field.
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