Today, the Supreme Court altered Clean Water Act jurisprudence when it vacated and remanded a closely-watched Ninth Circuit decision which pertained to the federal government’s authority to oversee of the migration of pollution through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. ____ (Apr. 23, 2020). In writing for the 6-3 majority, Justice Breyer presented the central issue of the litigation as “whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” Id. at 1 (internal citations omitted). The Court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Id. Because the “functional equivalent” standard is slightly amorphous, the Court introduced several factors to aid courts, the Environmental Protection Agency (EPA), and the regulated community in making permitting determinations. See Breyer Factors, below.

The decision stems from a citizens’ suit in which environmental groups sued the County of Maui, Hawaii. The suit alleged that Maui’s wastewater reclamation facility was discharging pollutants to navigable waters of the United States without the requisite Clean Water Act permit. The wastewater reclamation facility at issue operates by partially treating sewage and then pumping the treated water to underground wells. The treated water then migrates from the wells to the ocean via groundwater. The environmental groups argued that the migration of pollutants from the wells to the ocean via groundwater constitutes a discharge of pollutants to the ocean, while Maui argued that its discharges are to the underground wells only and accordingly do not require a federal permit. At issue, therefore, was whether the pollutants’ migration through groundwater to the ocean constituted a discharge of a pollutant to a navigable water requiring a Clean Water Act permit.

The opinion noted that its main reason for granting the petition for certiorari was that a wide variety of standards were in use by lower courts and the EPA, including: whether the pollution was “fairly traceable” to the source, whether the pollution had a “direct hydrological connection” to the source, or whether discharges to groundwater were excluded from federal permitting requirements altogether. Id. at 4 (internal citations omitted). The 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,” and noted that a permit is appropriate when “the discharge reaches the same result [as a direct discharge] through roughly similar means.” Id. at 15.

The outer limits of the functional equivalent standard were described by the Court by way of several examples. If there is a discharge from a point source that ends up in navigable waters after traveling through groundwater, where it is mixed with other materials, for many years and many miles after it is first discharged, then it most likely should not be subject to the federal permitting requirement. Likewise, if a discharge from a point source occurs very near (but not directly into) a navigable water but ends up there via groundwater migration, then a federal permit is likely needed.

It is, of course, the middle ground that is the most ripe for debate. To that end, the Court provided seven factors for EPA and the courts to consider (if and when relevant). The Court wrote that time and distance would likely be the most important factors to consider but noted that others may become more important depending on the unique circumstances at hand.

Breyer Factors:

(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.

Id. at 16. 

As practitioners in this space know, there is ample room for disagreement in terms of what is appropriate for any of the Breyer Factors, let alone when several are considered in concert. The case was remanded to the Ninth Circuit for further proceedings consistent with the opinion (the Ninth Circuit’s use of the “fairly traceable” standard was rejected) and it will be very interesting to see how the Breyer Factors are analyzed and weighed using the facts of the case.

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