The following guest post is by Martha Hannah, a professional engineer entering her second year at Wayne Law. Prior to law school, Martha worked for fifteen years as an environmental engineer, managing environmental compliance, remediation, and due diligence work for industrial and municipal customers, including state and federal government agencies. Martha graduated magna cum laude from the University of Michigan’s College of Engineering, with a BS in Civil and Environmental Engineering. She shares her analysis and perspective on the Supreme Court’s recent decision in County of Maui v. Hawai’i Wildlife Fund and the newly announced rule for regulating groundwater pollution under the Clean Water Act.
The Clean Water Act’s core edict is deceptively simple: unpermitted discharges of pollutants from a point source to navigable waters are prohibited. Since its inception in 1972, however, this prohibition has proven persistently nebulous. When tasked with staking out the parameters of this decree, the EPA has wavered, judicial interpretations have varied, and overarching questions have gone unanswered more often than not.
One of the most disputed of these questions has been whether the CWA requires a permit when a point source discharges to tributary groundwater, as it relates to the eventual addition of pollutants to hydrologically-connected surface water. In April, the law took a preliminary step toward clarity when the Supreme Court handed down a decision in County of Maui v. Hawai’i Wildlife Fund, 140 S.Ct. 1462 (2020). Simultaneously answering one question and leaving many others open, the Supreme Court stated that discharges of pollutants to navigable waters via groundwater are subject to CWA permitting requirements… some of the time. The language that the Court used in creating its standard, and that which it avoided using, says a lot about the intersection between environmental science and environmental law and maps out the variables that will play a role in future CWA litigation and, by extension, the well-being of our nation’s waters.
The dispute behind this case is straightforward. The County of Maui in Hawai’i operates a wastewater facility that collects sewage and, after partial treatment, injects its effluent into wells located approximately a half-mile from the ocean. Environmental groups brought a citizens’ suit against the County, characterizing this discharge as an addition of a pollutant to navigable waters, and thus arguing that the CWA requires a permit for it.
At trial, the plaintiffs presented a hydrological study of the discharges, showing a direct link between the injection locations and groundwater flows into the Pacific Ocean. Finding this evidence convincing, the district court granted summary judgment for the environmental groups, writing that, because the “path to the ocean is clearly ascertainable,” the discharge into the wells was “functionally one into navigable water.” 24 F.Supp.3d 980, 998 (Haw. 2014). On appeal, the Ninth Circuit affirmed but utilized different language to describe its standard, stating that a permit is required under the CWA 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 the navigable water.” 886 F.3d 737, 749 (2018) (emphasis added).
The Supreme Court granted certiorari “[i]n light of the differences in the standards adopted by the different Courts of Appeals . . . . Compare, e.g., 886 F.3d at 749 (“fairly traceable”), with Upstate Forever v. Kinder Morgan Energy Partners, L. P., 887 F.3d 637, 651 (C.A.4 2018) (“direct hydrological connection”), and Kentucky Waterways Alliance v. Kentucky Util. Co., 905 F.3d 925, 932–938 (C.A.6 2018) (discharges through groundwater are excluded from the Act's permitting requirements).” 140 S.Ct. at 1469-70.
In April 2019, a little over a year after the Ninth Circuit decision and five months ahead of the arguments before the Supreme Court, the Trump administration made a quick move to limit the reach of the CWA. The EPA issued an Interpretative Statement declaring releases of pollutants to groundwater categorically excluded from the Act’s permitting requirements. See https://www.epa.gov/npdes/releases-point-source-groundwater. This Statement set the groundwork for arguments in which the County of Maui could turn to the EPA’s current stance for support, and the environmental groups needed to argue against the current written policy and look to a past record of spotty EPA support for permit requirements for some groundwater discharges.
In the Maui opinion, the Supreme Court begins its analysis by turning to the dictionary and considering the meaning of the apparently perplexing word “from.” In the context of the CWA, does “from” indicate a bright-line test where only discharges directly from a point source to navigable water require a permit, or does it mean something broader? The Court concluded it is the latter by finding the Trump Administration EPA Interpretative Statement, which rules out NPDES permit requirements when any groundwater transport is involved, seriously inconsistent with the text of the statute:
EPA's new interpretation is  difficult to reconcile with the statute's reference to “any addition” of a pollutant to navigable waters. It is difficult to reconcile EPA's interpretation with the statute's inclusion of “wells” in the definition of “point source,” for wells most ordinarily would discharge pollutants through groundwater. And it is difficult to reconcile EPA’s interpretation with the statutory provisions that allow EPA to delegate its permitting authority to a State only if the State . . . provides “ ‘adequate authority’ ” to “ ‘control the disposal of pollutants into wells.’ ” Id. at 1474-75 (citations omitted).
Ultimately, the Court rejected the strict “directly from” interpretation championed by the County of Maui and the Trump Administration EPA Interpretive Statement, saying this reading would provide an easy path by which polluters could circumvent the intentions of the CWA, and is thus unreasonable. Justice Breyer, delivering the opinion for the 6-3 majority (Roberts, Ginsburg, Sotomayor, Kagan, and Kavanaugh), wrote, “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.” 140 S.Ct. at 1473.
The Court then proceeds in its analysis by conceding that once it eliminated the strict rule which would categorically exclude all discharges to groundwater from CWA jurisdiction, a range of possible standards remained. This, perhaps, is where the opinion gets most interesting. Just what does the Supreme Court think is the difference between “direct hydrological connection,” “fairly traceable,” “functionally equivalent” or any other standard that has been formulated, and what are the implications of its reasoning?
To begin, the Court finds the “apparent breadth of the Ninth Circuit’s “fairly traceable” approach  inconsistent with the context” of practicality, the statute’s preservation of regulation of nonpoint source pollution for the States and “longstanding regulatory practice” Id. at 1472-73. Throughout the opinion the Court expresses an unease concerning the reach of the Ninth Circuit’s standard. Breyer writes:
Virtually all water, polluted or not, eventually makes its way to navigable water. . . . Given the power of modern science, the Ninth Circuit's limitation, “fairly traceable,” may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms. Id. at 1470.
In setting its own standard, the Court reasons that its target should be “a middle ground between [the] extremes” offered by the Interpretive Statement and the Ninth Circuit. Id. at 1476. In the end, the Court holds “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.” Id. Even as it creates it, the Court acknowledges that its standard is as clear as mud, and provides a non-exhaustive list of potential factors for consideration in a determination of permit applicability to either illustrate this, provide guidance, or quite possibly, both:
The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances. But there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language. Consider, for example, just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. Id. at 1476-77.
The court also provides a near-end goalpost for the application of the CWA to discharges to groundwater, stating that “[w]here a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater . . . , the permitting requirement clearly applies.” Id. at 1476. However, at the far-end, the Court declines to implant the goalpost, instead leaving it hovering in a general area by stating that “permitting requirements likely do not apply” in a hypothetical situation where “the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later.” Id.
The Court leaves the task of further refinement of its “functionally equivalent” standard to the common-law method and the EPA (including via the administration of general permits). The Court also specifically puts faith in the discretion of district court judges in the setting of appropriate CWA penalties, trusting in their ability to take into account “the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.” Id. at 1477.
Because the Court rejected the Ninth Circuit standard, it remanded the case for further proceedings consistent with its standard, which in this case, seems likely to still result in a permit requirement for the County of Maui’s discharge.
Leaving its standard fuzzy and shying away from what the Court sees as an extreme set by the Ninth Circuit, the Supreme Court leaves many interpretive questions unanswered. The shortcomings to this method are obvious. In his dissent Justice Thomas, joined by Gorsuch, correctly points out that “[the Court] ultimately does little to explain how functionally equivalent an indirect discharge must be to require a permit,” leaving the interpretation in the hands of an EPA that has waffled on the issue to such a degree that its most recent interpretation was a complete about-face. Id. at 1481.
And what, exactly, is gained by the majority taking what it sees as a “middle road” by setting its “functionally equivalent” standard? Recall, the Ninth Circuit’s “extreme” standard was that a permit is required under the CWA 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 the navigable water.” 886 F.3d 737, 749 (2018) (emphasis added). In rejecting this standard, the Supreme Court is ignoring the definition of “fairly traceable” that is provided within the standard itself, which equates the Ninth Circuit’s formulation to its own. The Supreme Court discards the phrase “fairly traceable” altogether, as if those words themselves are highly objectionable.
The Supreme Court’s refusal to include the concept of traceability in its standard may reflect a general unease about fully incorporating science in the interpretation of law, which is a tendency particularly puzzling and disconcerting in a case where the science is so central to the effective execution of the law’s purpose. A standard based on traceability readily incorporates advances in the reach of hydrological science, however, in distancing its holding from that word, the Supreme Court may be freezing the law’s acceptance of the associated science at some unspecified pre-2020 level.
Justice Breyer writes in the opinion that “context imposes natural limits as to when a point can properly be considered the origin of pollution that travels through groundwater.” 140 S.Ct. at 1476. In his dissent, Justice Alito points out an absurdity with this formulation:
Under the Court's interpretation, it appears that a pollutant that leaves a point source and heads toward navigable waters via some non-point source (such as by flowing over the ground or by means of groundwater) is “from” the point source for some portion of its journey, but once it has travelled a certain distance or once a certain amount of time has elapsed, it is no longer “from” the point source and is instead “from” a non-point source. Id. at 1485.
The majority’s “natural limits” seem to be in fact undiscernible, primarily because of the Court’s reluctance to accept a traceability standard.
Though the moving target which motivates science can be a troubling prospect to those who make, enforce and interpret the law, fully incorporating scientific advances into the interpretation of the CWA is the only way to fully carry out its lofty objective: “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Clean Water Act § 101(a), 33 U.S.C. § 1251(a). The majority writes of “Congress' basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters” but fails to define “identifiable sources” in any way that would dispute the obvious definition: sources that are scientifically traceable. Id. at 1476. This interpretation, which clearly sets the burden of proof at convincing scientific traceability in lieu of fuzzy factors, was declined by the Court in the Maui opinion. The rejection of “traceability” represents a missed opportunity to both best carry out the Act’s objective and “provide a measure of fair notice and promote good-faith compliance,” as Justice Alito’s dissent observed was a deficiency of the majority’s standard. Id. at 1489.
In putting an end to any Clean Water Act interpretation that included strict exclusions of discharges to groundwater from permitting requirements, the Maui decision is a major victory for those who advocate for the protection of the environment. However, in its rejection of a standard based on traceability, the Court declined the opportunity to link the application of the CWA directly to the governing science. This move leaves unanswered many additional questions concerning the CWA’s scope; questions which will continue to be the subject of litigation as scientific understanding of pollutants and their transport progress.