INSIGHT: Past Is Future for SCOTUS Groundwater Decision

The U.S. Supreme Court recently issued its long-awaited decision in County of Maui v. Hawaii Wildlife Fund, holding that a Clean Water Act (CWA) permit is required when a discharge through groundwater is the “functional equivalent of a direct discharge.”

For those of us who have clients interested in the issue, their questions have likely gone from, “When will they rule?” to “What did they rule” to “What does that mean?”

What’s the honest answer? “We do not yet know.” By looking to the past, however, we can get a sense of what to watch for in the future.

Rapanos Decision

The last time the Supreme Court decided to abandon the arguments proposed by the parties and chart its own path in a CWA case was nearly 15 years ago, when the court issued the still-controversial Rapanos decision. There, the court held that the scope of the CWA was controlled by terms that did not appear in the statute or regulations.

Rapanos came with the additional complexity of being a 4-1-4 decision, with little agreement about which opinion controlled. Either way, both had found that the CWA was governed by terms that seemingly appeared to desperate Justices like mermaids appear to doomed sailors.

Many of the first wave of cases interpreting Rapanos were enforcement cases where the defendant had already been found guilty or to have otherwise violated the Act. The government, therefore, was starting at an advantage.

Over the two years after the decision, the government was very successful in having courts find that Justice Kennedy’s “significant nexus” standard was broad and could be proven in several ways. By the time the EPA and Army Corps of Engineers finalized their guidance interpreting the case, the courts had largely already coalesced around a common understanding of the decision.

Enforcement Unlikely

That is not how we will learn what constitutes the functional equivalent of a direct discharge. The EPA’s most recent position on the issue was that a discharge that reaches groundwater will never require a CWA Section 402 permit.

Despite being torpedoed by six justices who found the EPA’s interpretation “neither persuasive nor reasonable,” it is unlikely that there will be government-led enforcement actions based on discharges into groundwater at least through the current administration. And even if the administration changes in 2021, enforcement cases that are litigated in court are rare, and their development is often measured in years, not months.

What we will see, however, are environmental and other advocacy organizations continuing to use the CWA’s citizen suit provision when a pollutant reaches navigable waters only after it enters the groundwater. That is how this issue came before the Supreme Court in the first place, and because of the implications for determining the scope of the functional equivalent test moving forward, one should expect to see an increase in those cases as organizations try to build out as broad a test as possible.

Bringing citizen suits to push the boundaries of what might constitute the functional equivalent of a direct point source discharge will not be without risk, however. As with Rapanos, the first court opinions to interpret “functional equivalent” are likely to become the starting point for the courts that come next, some of which will feel the need to justify and defend any deviation from those early opinions regardless of where they occur.

The less a discharge in a citizen suit looks like and acts like a direct point source discharge, the greater the chance that a court will define functional equivalent in terms of what it is not, rather than what it is.

Fourth Circuit Case

Ironically, the case that may end up defining which discharges to groundwater require an NPDES permit is a case the Supreme Court declined to hear. After holding the petition for certiorari in abeyance while deciding the Maui case, on May 4, the Supreme Court “GVR’d” Upstate Forever v. Kinder Morgan Energy Partners LP—meaning the court granted certiorari, vacated the Fourth Circuit’s opinion in the case, and remanded the case back to the Fourth Circuit for further action consistent with the court’s decision in Maui.

It remains to be seen whether the Fourth Circuit will further remand the case to the district court, but either way, the Kinder Morgan case will be one of the first to apply the Maui decision. The Fourth Circuit had adopted the EPA’s long-held prior position that discharges that reached navigable waters via groundwater constituted point source discharges when the groundwater served as a direct hydrological connection between the point of discharge and the navigable water.

It is quite possible, therefore, that the Fourth Circuit will conclude that the functional equivalent of a direct point source discharge includes at least discharges where the groundwater serves as a direct hydrological connection, but then leave the task of defining what else constitutes a functional equivalent to another day.

At that point, the issue will have sailed around the world just to arrive back at the very same place it started many years before.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Kevin Minoli leads Alston & Bird’s Environment, Land Use & Natural Resources Group in Washington, D.C. Before joining Alston & Bird, Minoli spent 18 years with the Environmental Protection Agency, most recently serving as acting general counsel and principal deputy general counsel.