The Supreme Court Sides with Clean Water Advocates and Creates a New Legal Standard for Point Source Permitting

Post Authored by Katelyn Scott

On April 23, 2020, the US Supreme Court issued one of its first opinions from isolation for County of Maui v. Hawai’i Wildlife Fund. 590 U.S. __ (2020). It specifically held, in a 6-3 decision, that point source pollutant discharges into navigable waters through groundwater required a permit under the Clean Water Act. While the case was remanded to the trial court, environmental groups are optimistic about its application for  future Clean Water Act cases.

Since the 1980s, a Maui wastewater treatment plant undisputedly and indirectly discharged millions of gallons of treated sewage into the Pacific Ocean through groundwater without a permit. The environmental groups that brought the suit alleged that the discharge required a permit and negatively impacted coral reefs, marine wildlife, and recreation off Kahekili Beach. The county, with support from large industrial business organizations, argued that because its discharge was not directly into the water, but through the groundwater, it did not need a permit.

The Clean Water Act (“the Act”) forbids adding pollutants from a point source to navigable waters without the appropriate permit. Specifically, the decision turned on the interpretation of the phrase “from the point source” in the Act and focused on the word “from.” Relying on a Ninth Circuit decision, the plaintiffs asserted that because the pollution in the Pacific Ocean was “fairly traceable” to the wastewater treatment plant, a permit for the discharge was required under the Act. The County of Maui argued that the statutory language created a bright-line test. As a result, according to the County of Maui, a permit was not needed because the wastewater treatment plant was not directly discharged into a navigable waterway.

The majority attempted to strike a balance between the Ninth Circuit’s fairly traceable test and Maui’s bright-line test by creating a new “functional equivalent” standard. Justice Breyer, as a part of the majority, found the Ninth Circuit approach was too broad. It applied to plaintiffs too distant in location and time. As a result, the bright-line rule left a loophole that allowed a pipeline to be ended at  at the waters’ edge and avoid permit requirements. This was clearly against the purpose of the Act.

Instead, the Court concluded that the statute required a permit when “there [was] a direct discharge from a point source into navigable waters or when there [was] the functional equivalent of a direct discharge.” County of Maui, 590 U.S. at 15. (emphasis in original).

Determining whether a permit is required is circumstantial. As a result, the Court outlined 7 factors when considering whether a permit is required: 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, and 7) the degree to which the pollution has maintained its specific identity. County of Maui, 590 U.S. at 16. The High Court left room for lower courts and government agencies to provide their own guidance through individual cases, regulatory enforcement actions, and rulemaking.

Justice Breyer also pointed out that while this case was pending, the EPA drastically changed its position on ground water pollutants. Previously, the EPA issued guidance requiring permits for discharges from any point source reaching navigable waters through groundwater. Here, the EPA even asked the Ninth Circuit to apply a “direct hydrological connection” test. However, in its brief before the Supreme Court, the Solicitor General argued that all releases of pollutants into groundwater were outside the scope of the permit program under the Act. This dramatic change indicates a tumultuous and fractured future for the program.

The “functional equivalent” test creates questions about applying the permit programs to industries such as chemical plants, concentrated animal feeding operations, mines, and oil and gas facilities. Specifically, these industries will have to ask whether their ground water pollution will require a permit. The application of this opinion in this case on remand and future actions will determine the full scope of the new legal standard and its impact.

The full case history and opinion can be found at:

About the Author:

Katelyn Scott photoKatelyn Scott is a first year Associate at Regina P. Etherton & Associates, LLC. While earning her J.D. at Loyola University Chicago School of Law, Katelyn obtained a certificate in Public Interest Law and was a Senior Editor for the Journal of Regulatory Compliance. She completed an externship with the U.S. EPA Region 5 Office of Regional Counsel and served as a River Rights Associate for the Earth Law Center. Katelyn is licensed to practice in the state of Illinois and is a member of the Illinois State Bar Association and the Chicago Bar Association.


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