Justia Summary
Maui’s wastewater reclamation facility collects sewage, partially treats it, and daily pumps around four million gallons of treated water into the ground through four wells. This effluent then travels about a half-mile, through groundwater, to the Pacific Ocean. Environmental groups brought a citizens’ suit under the Clean Water Act, 33 U.S.C. 1365, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The Ninth Circuit affirmed summary judgment for the environmentalists.
The Supreme Court vacated. The Act 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. The Court rejected both the Ninth Circuit’s broad “fairly traceable” interpretation and the total exclusion of all discharges through groundwater, as urged by Maui and reflected in the EPA’s recent Interpretive Statement, that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program.” That interpretation is inconsistent with the statute’s reference to “any addition” of a pollutant from a “point source” to navigable waters, given the statute’s inclusion of “wells” in the “point source” definition; wells ordinarily discharge pollutants through groundwater.
The statute is intended to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the states’ longstanding regulatory authority over land and groundwater. A permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge. Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Although this interpretation does not present a clear line, the EPA has applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope.
