Is water pollution that travels through groundwater or over land illegal without a permit? The U.S. Supreme Court in County of Maui v. Hawaii Wildlife Fund gives us a test to determine if a water pollution permit is required.
In the midst of a crisis in public health and a global rethinking on how we move through what seemed to be regular human activity, the U.S. Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund, et al., 590 U.S. ____ (April 23, 2020), that how pollution reaches water bodies – literally the method of transport of pollution – is not an excuse for eventually adding pollution to our waterways. In doing so, the Court gave us another complete rethinking of how we can address public health and welfare – the safe and healthy use of our water systems in this instance – on a systematic basis.
Here’s what we knew before the Supreme Court’s ruling: the “addition” of any “pollutant” from a “point source” to “navigable waters” is prohibited. If you meet these elements of the law that collectively constitute a “discharge” – addition, pollutant, point source and navigable water, then your discharge is illegal unless you apply for and receive a permit, known as a National Pollution Discharge Elimination System permit or NPDES permit.
It’s easy to spot discharges when you’re kayaking a river. Typically, there’s a pipe sticking out of the side of the riverbank. That pipe is what is known as a “point source” because it’s a “discrete conveyance” that adds pollutants to the waterway. There are cases finding that the runoff over a pile of coal that were placed close to a waterway is also a discrete conveyance or point source.
The question before the court was 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.” So, the case is trying to figure out if the point source – the pipe or pile or other mechanism for adding pollutants – can be located somewhere other than directly to a navigable waterway and whether there can be an intervening method of transport, such as groundwater, of those pollutants to navigable waters. The Court’s answer? YES: “[w]e conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”
I can’t tell you how many questions I’ve received over the years about nonpoint sources of pollution to creeks, ponds, lakes and rivers, but it’s a lot. There were many days I spent in my office trying to brainstorm with legal and scientific minds what a “discharge to groundwater” might look like and whether it fell under the prohibition of the Clean Water Act. Is spraying fertilizer on land that eventually makes its way to a river or lake (and many times causing harmful algal blooms) an addition from a point source? What about the piles of coal ash that leach into groundwater and then end up in the river? What about green stormwater infrastructure designed to allow and encourage the collection of surface water runoff by infiltration into groundwater? The Clean Water Act requires that the addition of pollution is “from” a point source. The Court’s opinion explores what it means to come “from” somewhere – a question we can all relate to in plain, ordinary terms.
And to be fair, this becomes much more confusing in the states where I currently practice – Ohio and Pennsylvania – because both states define the equivalent of the Clean Water Act’s “navigable waters” as including groundwater. So, presumably the addition of pollutants from a point source doesn’t even need to reach a flowing waterway to be included within the scope of those state’s prohibitions. Indeed, it appears that just the discharge to groundwater itself is prohibited without a permit if there’s an addition.
Whew! This is exciting stuff. So, for other states that don’t include groundwater in the definition of their navigable waters, the Maui case requires us to consider whether a point source that is not discharging directly to a navigable water, but the addition of pollution eventually gets to that navigable waterway, is a functional equivalent of a direct discharge to that waterway. That’s the name of the court’s test that we should apply: the functional equivalent test. What’s involved in the “functional equivalent” test?
The Court asks us to primarily use time and distance of the pollution that derives from a point source origin to navigable water as the most important factors. So, if the time it takes pollutants to travel from running off a coal pile, through groundwater or some other intervening method of travel, then to the creek is hundreds of years and over many miles, then it is not likely prohibited under the Clean Water Act. However, the Court tells us that the time and distance between the point source and the addition to navigable waters are not the only factors to consider. The Court provides us with a list of things that could be considered and notes that there are probably many other circumstances to consider. Here’s the Court’s list of potentially relevant factors:
Transit time;
Distance traveled;
The nature of the material through which the pollutant travels;
The extent to which the pollutant is diluted or chemically changed as it travels;
The amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
The manner by or area in which the pollutant enters navigable water;
The degree to which the pollution (at that point) has maintained its specific identity.
Not every instance of a point source indirectly discharging to navigable waters will be prohibited, but evaluation of the fate, transport and concentration of pollutants from the point source and in the navigable water will be necessary to determine whether the discharge is prohibited without a permit.
