The Supreme Court ruled in the case of The County of Maui, Hawaii vs. Hawaii Wildlife Fund that some groundwater should be regulated under the Clean Water Act through National Pollutant Discharge Elimination System (NPDES) permits.
What Was the Case About?
This case hinges on whether The County of Maui, Hawaii requires a National Pollutant Discharge Elimination System (NPDES) permit for discharging its treated wastewater into groundwater injection wells, specifically the Lahaina injection well. What makes this case more interesting is that this groundwater from this well then makes its way to other navigable waters of the U.S., namely oceans.
“Generally, the case was about a wastewater treatment facility in Maui that was discharging through disposal wells into groundwater. That groundwater was then traveling a bit of a distance — though not that far — into the seawater, which is a navigable water of the U.S.,” said Joel Johnston, an attorney for Hall Estill specializing in environmental and regulatory law. “Discharging pollution into a navigable water of the U.S. is absolutely covered by the Clean Water Act. This case was looking at whether or not those permitting obligations apply when that discharge is into the groundwater.”
Earth Justice sued the county on behalf of Hawaii Wildlife Fund, Surfrider Foundation, Sierra Club-Maui Group, and West Maui Preservation Association for not having a proper NPDES permit for its discharge into the injection well. Backing up this case was a study conducted by the U.S. EPA, which used dye tracers to identify that the discharged water into the injection wells did in fact make its way to the ocean.
The court battle began in 2012 in the lower courts, and eventually made its way to the 9th U.S. Circuit Court of Appeals, which ruled the Count of Maui needed a permit for discharge using the term “fairly traceable” as its testing measure. In an appeal, the county petitioned the Supreme Court to take up the case, which it did on Feb. 19, 2019. Amicus briefs from many industry associations, thought leaders and professionals were filed in the case, and SCOTUS finalized its verdict and ruling April 23, 2020. It remanded the case back to the 9th Circuit to determine if the County of Maui will need an NPDES permit.
SCOTUS Ruling & Decision
What SCOTUS ruled in this case was not whether the County of Maui, Hawaii required a permit for discharge into the injection wells, but instead was more broad and vague. It said that some groundwater should be regulated under the Clean Water Act, particularly if discharge into that water flows into a navigable water such as an ocean.
In a 6-3 decision, the majority of justices filed concurring opinions to that of Justice Stephen Breyer, whose opinion referenced Congress’ language of the Clean Water Act. He stated:
“The reading of the statute that best captures Congress’ meaning, reflected in the statute’s words, structure, and purposes, is that 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.”
This portion of the text is the lynchpin of his opinion and the phrase “functional equivalent of a direct discharge” will be a term all utilities applying for NPDES permits in the future will need to familiarize themselves with.
Nathan Gardner-Andrews, general counsel & chief advocacy officer for the National Association of Clean Water Agencies, said this term may have the same lasting impact that “significant nexus” had after the SCOTUS case of Rapanos v. United States (the case that kicked off more than a decade of arguments on Waters of the U.S. or WOTUS).
“Significant nexus became the term we argued over for the past 15 years or so, and I suspect that functionally equivalent will be somewhat similar,” Gardner-Andrews said. “The Supreme Courts seems to every time it dives into the Clean Water Act to only muddy the waters, no pun intended.”
Read: NACWA’s Amicus Brief
Functional Equivalent of a Direct Discharge Test for NPDES Permits
The term “functional equivalent of a direct discharge” is used 11 times in Justice Breyer’s opinion, but the court did not provide a black and white definition of what this means.
In the words of Justice Breyer, “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...”
Breyer notes that other factors may be involved in this rule-making as well, but he also noted that the terms time and distance are the primary factors to consider when determining the necessity of a permit.
Thaddeus Lightfoot, partner of the international law firm Dorsey & Whitney, is a former trial attorney with the Environment Division of the U.S. Department of Justice.
“Time and distance puts this in a complete case-by-case analysis. It’s going to be a fact-based case-by-case analysis, frankly really similar to what the Supreme Court gave us with the Rapanos case, the ‘significant nexus’ test,” Lightfoot said.
What the “Functional Equivalent” Test Means for NPDES-Permitted Entities
What this case means for utilities and industrial facilities discharging into groundwater will hinge on a two things, Lightfoot said. First is determining if the discharge contains or is a pollutant, which he said is likely the case as federal law is broad in this context. And the second is if that pollutant is a discharge from a point source to a navigable water that is regulated by an NPDES permit or if it is the “functional equivalent of a direct discharge.”
Johnston, Gardner-Andrews and Lightfoot all said this test will require a case-by-case review of NPDES permit applications. Lightfoot said this ultimately makes the process more complex to get a permit and that the process may also take much longer. What Lightfoot said is certain is that every entity discharging into groundwater is likely to face the “functional equivalent of a direct discharge” test for an NPDES permit. Gardner-Andrews said the extent of the tests’ impact is still not clear yet.
“As it relates to municipal utilities, it’s going to take some time to tell how far this reaches,” Gardner-Andrews said.
Also of note is how this ruling could extend beyond utilities and municipalities and into the industrial water and wastewater sector regulations, particularly with hydraulic fracturing and deep well injection, commonly used in oil and gas production.
“Does this potentially mean this applies to underground injection wells? The short answer is Yes,” Lightfoot said. “Obviously, it depends on whether or not you have a pollutant, but again with the broad base definition of pollutant under the water act, you’re going to be injecting a pollutant in almost all cases.”
These users would then be beholden to the same NPDES permit test mentioned in the SCOTUS ruling.
The next step in this process is defining the “functional equivalent of a direct discharge” at a regulatory level. The Supreme Court has remanded that to the U.S. EPA, and Gardner-Andrews said NACWA and other agencies in the water and wastewater sector are likely to take part in providing guidance on that definition and determination.
“What we’re frankly looking at here is years of rulemaking and potential litigation moving forward trying to get some clarity on what is a functional equivalent. What does that mean in terms of who is in or out of the permitting realm?” Gardner-Andrews said. “The court essentially opened the door to say that EPA can provide guidance or a rule to help clarify from EPA’s position what is a functional equivalent.”
If it is anything like Rapanos v. United States and the 15 year arguments that have been heard on the definition of “significant nexus,” it could be quite some time before we have a clear definition, standard and rule on the issue.