A Win for Clean Water: County of Maui v. Hawaii Wildlife Fund

The 1972 Clean Water Act (CWA) is a landmark piece of legislation that protects American waters from pollutants and discharges. To regulate pollution discharges, the drafters of the CWA created a legal framework, the National Pollutant Discharge Elimination System (NPDES), that requires agencies to obtain an NPDES permit for pollution discharges that originate “from a point source” such as pipes or man-made ditches and enter certain bodies of water, i.e. navigable waters and surface water bodies termed “waters of the United States.” [2] However, the definitions of “point source” and “waters of the United States” in the CWA have proven too vague and have thus been the source of much litigation. In April 2020, the Supreme Court provided a framework to evaluate whether a source of discharge is a “point source” in County of Maui, Hawaii v. Hawaii Wildlife Fund. This ruling was consequential because it strengthened the CWA by closing a loophole that enabled polluters to undermine the regulations in this legislation. 

In the 1970s, the County of Maui’s Lahaina Wastewater Reclamation Facility began injecting treated wastewater (effluent) from homes and businesses into underground injection control wells — a common method for effluent disposal. [3] Over 90% of this effluent mixed with groundwater and entered the Pacific Ocean. [4] However, according to reports from 1973, 1991, and 1994, the EPA and the Hawaii Department of Health did not seek an NPDES permit  despite awareness of this pollution. [5] 

There was no conflict over whether the underground injection wells constituted a “point source” because the evidence clearly showed that the pollution originated from the wells [6]. Instead, at issue in County of Maui was whether the discharge required an NPDES permit under the CWA since the pollution was conveyed from the “point source” (the wells) to the “waters of the United States” (Pacific Ocean) through an intermediate or “nonpoint source” (e.g. groundwater). [7] The plaintiffs, Hawaii Wildlife Fund and other environmental groups, argued that the County of Maui was violating the CWA based on a more sweeping interpretation of pollution “from a point source” that includes pollution conveyed through an intermediate body. [8] However, the defendants, the County of Maui, argued that an NPDES permit was not required because the pollution does not enter the Pacific Ocean directly “from a point source” but rather indirectly through groundwater [9]. The defendants’ interpretation of the CWA sought a loophole in the CWA that would enable polluters to circumvent the CWA regulations by transmitting the pollution discharge through an intermediate body. The Ninth District Court agreed with the plaintiff’s interpretation of pollution “from a point source” in the CWA as any pollution that is “fairly traceable” to a point source, but the County of Maui appealed this decision, bringing the case to the Supreme Court. In its ruling, the Supreme Court ultimately upheld the Ninth District Court ruling that the County of Maui had violated the CWA and required an NPDES permit but provided a different interpretation of the CWA. [10]

The Supreme Court’s ruling clarified the definition of pollution discharge “from any point source” in the CWA. In the majority opinion, Justice Breyer rejected the Ninth District Court’s interpretation of the assigning the “fairly traceable” requirement to any point source because such a broad interpretation would allow for even the regulation of “100-year migration of pollutants through 250 miles of groundwater to a river” -- an overly expansive standard. [11] Moreover, Justice Breyer wrote that “longstanding regulatory practice undermines the Ninth Circuit’s broad interpretation of the statute” because the EPA has opposed the act’s application to cases in which the discharge travels great distances before reaching waters of the United States. [12] Thus, the Supreme Court applied an interpretation of the CWA that aligned with that of regulators such as the EPA.

The Court instead established a new rule to evaluate whether a discharge “from a point source” is regulated under the CWA: the functional equivalent test. Justice Breyer wrote, “we hold 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.” [13] This interpretation extended the application of the CWA to cases in which the discharge does not directly enter surface water bodies but is the “functional equivalent of a direct discharge” while limiting the application of the CWA to situations in which discharges travel great distances before entering waters of the United States.  In County of Maui for example, while the pollution discharge did not directly enter the Pacific Ocean from the underground injection control wells, it was conveyed through half a mile of groundwater and thus is the “functional equivalent” of a direct discharge. Thus, the Supreme Court’s functional equivalent test closed a loophole that would have given polluters greater freedom and reinforced Congressional intent. 

Nevertheless, the Supreme Court’s functional equivalent test is not restrictive, as it leaves room for unique circumstances to be considered. Justice Breyer wrote, “if 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, the permitting requirements likely do not apply.” [14] The Supreme Court intentionally employs vague language as Breyer writes that “requirements likely do not apply” even in an extreme case where the pollution discharge travels a great distance through groundwater over much time. The Supreme Court’s avoidance of a strict limit in the functional equivalent test thus strengthens the CWA because the Court provides guidance for interpreting the Act, but it does not prevent it from applying to unique circumstances. While a vague interpretation could also pave the way for polluters to undermine the CWA, the Supreme Court provided further guidance for the determination of a specific case.

In order to enable lower courts to make a ruling on whether a discharge is “the functional equivalent of a direct discharge,” and thus regulated under the CWA, the Supreme Court provided several guidelines. First, the main stipulation for lower courts was the recognition that each case will have to be decided within its own particular context because the surrounding conditions have “natural limits” for when a point source can be considered the source of the pollution carried through groundwater. [15] Some of the contextual factors that the Supreme Court highlights for consideration include, but are not limited to, transit time, distance traveled, the nature of the material, and manner of how it enters the water source. However, the determination of which factors are most relevant and significant depends on the facts of the particular case. [16] While the Supreme Court does not provide specific parameters in its functional equivalent test, its emphasis on evaluating each case within its context strengthens the CWA as it allows for the Act to be applied to unique circumstances of pollution which cannot be predicted. Moreover, Justice Breyer writes that “the object in a given scenario will be to advance, in a manner consistent with the statute’s language, the statutory purposes that Congress sought to achieve.” [17] While the functional equivalence test reinforces the importance of statutory objective and application, its flexible parameters depend on lower courts’ interpretation of and the extent of their adherence to these guidelines in future decisions. Only time will tell definitively how strong the functional equivalence test actually is. [18]

Nevertheless, the County of Maui ruling does not address the definition of  “waters of the United States” under the CWA—another major point of debate. [19] [20] In the 2006 case Rapanos v. United States, the Supreme Court was split over whether wetlands constituted “waters of the United States” according to the CWA and whether the pollution of wetlands was regulated under the CWA. [21] Even further, the CWA grants the federal government jurisdiction over the determination of “waters of the United States.” With the frequent transfer of executive power and their differing environmental policies, the definition of “waters of the United States” has been a source of continued conflict.

In 2015, the Obama Administration issued a revision to the definition of “waters of the United States” that was more sweeping and would have extended greater EPA oversight over agricultural, manufacturing and real estate development. [22] However, litigation and the Supreme Court’s delegation to federal district courts of challenges to the rule led to a patchwork implementation of this rule across the country. [23] Consequently, in 2017, the Trump Administration repealed the Obama Administration’s interpretation of “waters of the United States” and replaced it with a narrower interpretation of the term that excludes bodies such as groundwater that were included in the 2015 Obama Administration rule. While courts have not yet ruled on the Trump Administration’s rule, the Biden Administration is expected to repeal it and adopt a new interpretation closer to that of the Obama Administration, one which is more immune from litigation. [24]

Although it is difficult to predict the impact of County of Maui on future environmental policy, County of Maui could pave the way for more regulatory environmental policy, as it reinforces the importance of Congressional authority. Moreover, the County of Maui reinforces the CWA’s relegation of authority over groundwater to states and other federal legislation, undermining interpretations of “waters of the United States” like that of the Obama Administration. Nevertheless, County of Maui was a significant step in the interpretation and implementation of the CWA that will protect clean waters for years to come.

Edited by Lorenzo Thomas Garcia

[1] United States Environmental Protection Agency, Summary of the Clean Water Act. Accessed November 27, 2020. https://www.epa.gov/laws-regulations/summary-clean-water-act. 

[2] United States Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES). Accessed November 27, 2020. https://www.epa.gov/npdes. 

[3] "County of Maui, Hawaii v. Hawaii Wildlife Fund." Oyez. Accessed November 27, 2020. https://www.oyez.org/cases/2019/18-260.

[4] id.

[5] id.

[6] Kristen Souza, “County of Maui, Hawaii v. Hawaii Wildlife Fund (No. 18-260)”, Environment, Natural Resources, and Energy Blog, Lewis and Clark Law School, August 19, 2020, Accessed November 27, 2020. https://law.lclark.edu/live/blogs/128-county-of-maui-hawaii-v-hawaii-wildlife-fund-no.

[7] id.

[8] id.

[9] Jessica A. Knoblauch, Maggie Caldwell, “The Clean Water Case of the Century,” Earthjustice, updated April 23, 2020, Accessed November 27, 2020. https://earthjustice.org/features/supreme-court-maui-clean-water-case.

[10] County of Maui, Hawaii v. Hawaii Wildlife Fund. 570 U.S. ___ (2020). 

[11] id.

[12] id.

[13] id.

[14] id.

[15] id.

[16] id.

[17] id.

[18] Jon Devine, David Henkin, “Closing a Concocted Clean Water Act Loophole,” The Regulatory Review: A Publication of the Penn Program on Regulation, July 20, 2020. Accessed November 27, 2020. https://www.theregreview.org/2020/07/20/devine-henkin-closing-concocted-clean-water-act-loophole/.

[19] Paul Sonderegger, Spenser Owens, “Waters of the United States’ Rule from EPA, Corps May Make Real Estate Development More Easily Achievable and Less Costly,” RPTE eReport 2019 Winter Issue, American Bar Association, Accessed November 27, 2020. https://www.americanbar.org/groups/real_property_trust_estate/publications/ereport/rpte-ereport-winter-2019/_waters-of-the-united-states-rule-from-epa--corps-may-make--real/.

[20] John C. Cruden, Allyn L. Stern, “Key Environmental Law and Policy Issues to Watch in the Biden Administration,” The National Law Review, Vol. 10 No. 332, Accessed November 27, 2020. https://www.natlawreview.com/article/key-environmental-law-and-policy-issues-to-watch-biden-administration.

[21] "Rapanos v. United States." Oyez. Accessed November 27, 2020. https://www.oyez.org/cases/2005/04-1034. 

[22] Paul Sonderegger, Spenser Owens, “Waters of the United States’ Rule from EPA, Corps May Make Real Estate Development More Easily Achievable and Less Costly.” https://www.americanbar.org/groups/real_property_trust_estate/publications/ereport/rpte-ereport-winter-2019/_waters-of-the-united-states-rule-from-epa--corps-may-make--real/.

[23] Bernadette M. Rappold, Casey A. Shpall, “Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains,” GreenbergTraurig Law, September 18, 2019, Accessed November 27, 2020. https://www.gtlaw.com/en/insights/2019/9/repeal-of-obama-era-waters-of-the-us-rule-major-scotus-decision-to-come.

[24] County of Maui, Hawaii v. Hawaii Wildlife Fund. 570 U.S. ___ (2020).