Author: Gibbons P.C.

The effects of the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund have begun to ripple out. In County of Maui, the Court held that the Clean Water Act requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” The Court acknowledged the “difficulty with this approach” in dealing with the “middle instances,” and provided a non-exhaustive list of seven factors that may be considered in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. “Time and distance will be the most important factors in most cases, but not necessarily in every case,” the Court guided. In Kinder Morgan Energy v. Upstate Forever, a Clean Water Act case seeking certiorari of a decision from the Fourth Circuit, the Supreme Court followed County of Maui by issuing an Order granting certiorari, vacating the Fourth Circuit’s decision, and remanding the case to the Court of Appeals for “further consideration in light of County of Maui.” In Kinder Morgan Energy, two environmental groups argued that Kinder Morgan was illegally discharging pollutants into navigable waters without a permit under the Clean Water Act. Similar to the facts of the Maui case, the discharge by Kinder Morgan was alleged to...

The U.S. Supreme Court recently handed down a decision in the most prominent Clean Water Act (CWA) case since its 2006 plurality decision in Rapanos v. United States. In County of Maui v. Hawaii Wildlife Fund, the Court interpreted the landmark statute to require a permit where there is a “functional equivalent” of a direct discharge from a “point source” into “navigable waters.” The likely impact of this holding for the parties is to subject the County of Maui to the statute’s permitting requirements for its discharges of treated wastewater through wells to groundwater that eventually reach the ocean. Beyond the parties, environmental groups are likely to cheer this decision while the regulated community, and lower courts, will likely be wary of the Court’s multifactor test. The CWA prohibits the “addition” of any pollutant from a “point source” to “navigable waters” without a permit from the Environmental Protection Agency (EPA). The County of Maui came before the Court as the operator of a wastewater reclamation facility in Maui, Hawaii. That facility collects sewage, partially treats it, then pumps that water into four underground wells. The effluent then travels about a half mile through groundwater to the Pacific Ocean. For nearly five decades the facility operated in this manner with the knowledge of the EPA, and...