When it comes to water pollution regulations, it depends on what your definition of “from” is.

When it comes to water pollution regulations, it depends on what your definition of "from" is.

Last week I started blogged about the cases I reported in my publication with the American Bar Association entitled “Agricultural Management Case Update (Second Quarter, 2020).” That continues this week, with a landmark case from the United States Supreme Court impacting agriculture.

In County of Maui v. Hawaii Wildlife Fund, No. 18-260, the Supreme Court of the United States interpreted the Clean Water Act’s (CWA) requirement of a permit for “discharge of a pollutant. “The CWA defines” discharge of a pollutant” as “any addition of any pollutant to navigable waters … from any point source.” The word “from” emerged as the point of contention, generating the court opinion, a concurring opinion, and two dissenting opinions.

Petitioner County of Maui operated a wastewater reclamation facility that pumped 4 million gallons of effluent daily through four wells, groundwater, and ultimately the ocean. When the County discharged this effluent without a permit, several environmental groups instituted an action in district court. The district court sided with the environmental groups. The district court found that because the path from the wells to the ocean is “clearly ascertainable,” the discharge into the groundwater “was functionally one into navigable water”-the type of water that requires a permit for discharge. The Ninth Circuit Court of Appeals affirmed, but under slightly different terms. The Ninth Circuit held that because the pollutants are “fairly traceable” from the County facility to the navigable waters, the discharge is the functional equivalent of a discharge into the navigable waters. In their arguments before the Supreme Court, the environmental groups adopted the Ninth Circuit’s holding, and added a proposed proximate cause of pollutants in navigable waters requirement. The County (and Solicitor General as amicus curiae) argued that when the pollutant travels through groundwater, it is no longer “from” a point source.

The Supreme Court rejected the arguments of both parties, and vacated the decision of the Ninth Circuit. The Supreme Court held, “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 direct discharge.” This holding requires a permit when “a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” The majority opinion named as “the most important” factors “time and distance … in most cases, but not necessarily every case.” The Court provided “just some” additional factors that “may prove relevant” in determining whether there is a functional equivalent of direct discharge:

  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.

Despite listing these additional factors, the Supreme Court appears to anticipate that lower court decisions will “lead to ever more refined principles” under the “traditional common-law method.” Similarly, the EPA “can provide administrative guidance (within statutory boundaries) in numerous ways, including through, for example, grants of individual permits, promulgation of general permits, or the development of general rules.” The dissenting opinions prefer bright line rules to avoid confusion in the lower courts, but the majority opinion reflects the ongoing efforts of courts to “find general language that will reflect a middle ground.”

The saga continues. In May of this year, the Supreme Court punted a decision from the Fourth Circuit Court of Appeals-to reconsider its decision in light of the Maui discussion discussed just now.

The Fourth Circuit case, Kinder Morgan Energy v. Upstate Forever boils down to the following decision: “a plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through groundwater.” The Fourth Circuit quoted the EPA to describe the directness of a “hydrological connection”: “‘time and distance’ are relevant, as well as factors such as ‘geology, flow, and slope.'” In this case, pollutants allegedly travelled from a broken pipeline through 1000 feet or less of groundwater, and into adjacent navigable waters-Browns Creek. The Court found the distance of 1000 feet or less from the pipeline to the navigable waters to be “extremely short.” Yet, the Fourth Circuit in a footnote found “no functional difference between the Ninth Circuit’s fairly traceable concept and the direct hydrological connection concept.” But in the same footnote, the Fourth Circuit suggested that there may be some difference: “In fact, the direct hydrological connection may be viewed as a narrower application of the same principle, addresses point source discharged through ground water.” When the Fourth Circuit considers the case again, it will likely address whether there is any difference between the Supreme Court’s “functional equivalent” holding and the Fourth Circuit’s understanding of “the direct hydrological connection concept.”

Building partnerships between farmers & the communities that depend on them.