County of Maui, Hawaii v. Hawaii Wildlife Fund

Environmental Protection Agency permits are required only for pollutants directly discharged into navigable waters or when the functional equivalent of a direct discharge has occurred.

Petitioner operates a wastewater facility which sends partially treated effluent through ground water which eventually reaches the Pacific Ocean.  Respondents sued alleging violation of the Clean Water Act, which requires a permit from the Environmental Protection Agency for any operations which discharge pollutants into navigable waters.  The district court found Petitioner to be in violation of the Clean Water Act, finding that Petitioner’s discharge into the ground water was functionally a discharge to a navigable water.  The Ninth Circuit affirmed, finding that a permit is required for pollutants which are “fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749.  Rejecting the arguments set forth by both parties, the Supreme Court held that permit requirements did not extend to all groundwater and that legislative history shows the intent of Congress to leave regulation of groundwater to the States.  Instead, the Court found that the statute requires a permit when either a direct discharge into navigable waters occurs or when the “functional equivalent of a direct discharge” has occurred.  The Court further explained that, due to the fact dependent analysis of tracing pollutants, more specific language should not be used as a blanket rule, and instead urged lower courts to consider each alleged pollutant according to specific circumstances.  VACATED and REMANDED.