Hope From the High Court

Some good news came from the Supreme Court of the United States last month when they published their opinion in County of Maui v. Hawaii Wildlife Fund and closed a significant Clean Water Act (CWA) loophole. The case involves a public wastewater reclamation facility that discharges its waste into four different groundwater wells located about half a mile from the Pacific Ocean—all without a National Pollutant Discharge Elimination System (NPDES) permit.

Now historically, a NPDES permit is not necessary to discharge waste or pollutants into groundwater, and this is because groundwater is not a “navigable water” or a “water of the United States.” However, a NPDES permit is required for “any addition” of any pollutant from “any point source” to “navigable waters,” like the Pacific Ocean. To the average person this may seem arbitrary and confusing because groundwaters and surface waters are interconnected, but alas, that is what the law says. That is where this case comes in. This case acts to help create a legal bridge for the scientific connections between ground and surface waters, and provides an additional course of action to help protect water quality under the CWA.

In a 6 to 3 decision, with Justices Gorsuch, Alito, and Thomas dissenting, the Court held: a NPDES permit is required when there is a direct discharge from a point source into navigable waters or when there “is the functional equivalent of a direct discharge.” While this is narrower than the test proposed by the Ninth Circuit, there is a lot to be happy with here. To start, we learned that there is still a majority of Justices that are willing to support environmental cases. The Justices also closed an otherwise substantial loophole and established a new rule for regulating groundwater discharges that subsequently disperse into waters of the United States. This means that a multitude of industries may now be subject to additional CWA regulatory and permit requirements if it is determined that their groundwater discharges are functionally equivalent to a direct discharge—this is a whole new set of dischargers that might not have otherwise been regulated by a NPDES permit.

The new “test” remains a bit vague and will ultimately be defined further by the courts over time. However, it does provide an additional means of ensuring that our groundwaters and hydrologically connected surface waters are protected from unlawful pollutants. For the Russian River watershed, this means that waste treatment facilities, waste water holding ponds, misplaced storm water drains, mining operations, cities, and other local industries that might discharge their waste into groundwaters that are “functionally equivalent” to a direct discharge into the Russian River and its tributaries may now require a NPDES permit.

In other words, if a groundwater discharge is sufficiently close in time or distance to the Russian River, it may be possible to hold the discharger to a higher standard and reduce pollutants going into the Russian River. Specifically, a NPDES permit would then establish technology and water quality based limits for the discharger to meet. If those limits are not met, a permit violation occurs, and opens up the discharger to regulatory enforcement actions and possible citizen suit.

It will be a while before we see the full potential of this case, but until then, it will be exciting to watch the new test be molded by environmental attorneys and our courts.