Justices unveil new test on Clean Water Act's scope

The Supreme Court today found a middle ground in a dispute over whether a Hawaii county should have secured federal permits for a wastewater injection facility that released pollutants into groundwater that later reached the Pacific Ocean, ushering in a new test on the scope of the Clean Water Act.

Justices for the high court instructed the 9th U.S. Circuit Court of Appeals to revisit its determination that Maui County's Lahaina Wastewater Reclamation Facility was subject to Clean Water Act permitting requirements because the pollution in the ocean was "fairly traceable" to the facility's wells.

The court instead adopted a test that Justice Stephen Breyer floated during oral arguments in November 2019.

"The statutory provisions at issue require 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," Breyer wrote in a 6-3 opinion today in the case County of Maui v. Hawai'i Wildlife Fund.

Justice Brett Kavanaugh joined the majority but wrote a separate concurring opinion. Justice Clarence Thomas and Samuel Alito wrote dissenting opinions. Justice Neil Gorsuch joined Thomas' dissent.

During oral arguments, the justices grappled for a limiting test that would prevent regulated parties from ducking Clean Water Act requirements without significantly expanding the statute's reach.

Environmental groups told the court the 9th Circuit's ruling leaves the current program intact, while Maui County said requiring National Pollutant Discharge Elimination System permits for the Lahaina facility would be a significant overhaul of the Clean Water Act. In a dramatic shift from the previous administration, President Trump's EPA said the statute does not apply to groundwater discharges.

Breyer proposed a "functional equivalent of a direct discharge" as a possible threshold, an idea that Chief Justice John Roberts asked Breyer to define (Greenwire, Nov. 6).

The Supreme Court remanded the case to the 9th Circuit for further consideration in light of today's opinion.


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