Bloomberg Law
April 30, 2020, 7:30 PM

‘Scary’ Litigation Anticipated After Supreme Court Water Ruling

Ellen M. Gilmer
Ellen M. Gilmer

Environmental law experts said they’re looking to federal courts and agency action to clarify a new water permitting standard the U.S. Supreme Court established last week.

But the prospect of repeated litigation over the scope of the Clean Water Act is “pretty scary,” said Hilary Meltzer, chief of the Environmental Law Division of the New York City Law Department.

“I’m really worried about litigation being the solution here,” Meltzer said Thursday during an Environmental Law Institute webinar.

The justices ruled April 23 in County of Maui v. Hawai’i Wildlife Fund that certain types of indirect water pollution require a permit under the Clean Water Act.

They said pollution that takes an indirect route from a discrete source to a federally regulated waterway requires a permit when it’s the “functional equivalent” of a direct discharge. The majority acknowledged that the approach leaves significant gray areas but said the alternatives would amount to major loopholes in water protection.

“I think it’s fair to say that it will be not just attorneys who will be busy understanding this, but potentially hydrogeologists and others,” Hunton Andrews Kurth attorney Samuel L. Brown said.

Fellow Hunton attorney Elbert Lin, who represented Maui in the case, said the high court didn’t give “concrete guidance” but did provide some “bookends.”

The opinion laid out a set of factors to consider when applying the functional equivalent test, including the time and distance it takes for pollution to reach a federal waterway. Judges and the Environmental Protection Agency can deal with case-by-case questions as they arise, the majority said.

‘Workable Path’

Meltzer said she initially wasn’t worried about the Maui case, which centered on a wastewater treatment site, affecting other municipal systems. The particular setup there was unusual, she said, with waste injected underground and quickly mixing with groundwater and reaching the Pacific Ocean.

But another case in Connecticut showed how far the legal theory could stretch, Meltzer said. There, property owners sued a local water authority over untreated sewage backflows that could reach Long Island Sound.

“We need to find a workable path forward,” she said, adding, “a case-by-case determination is pretty scary if we’re really talking about litigation of each of these potential point sources.”

Meltzer, who is also a member of the National Association of Clean Water Agencies, recommended various policy fixes to prevent an overbroad application of the “functional equivalent” test.

The EPA could craft a rule clarifying applications of the functional equivalent test, establish general permits for septic tanks, and make clear exceptions for green infrastructure designed to keep pollution from moving directly into waterways, she said.

Daniel E. Estrin, general counsel and advocacy director for the Waterkeeper Alliance, said he didn’t anticipate a big increase in citizen suits alleging Clean Water Act violations under the new test.

Lin stressed that the majority opinion didn’t view its test as an expansion of the scope of the Clean Water Act.

“Perhaps really the point here is that the question is, how much room has the court given the agency to give guidance, whether that’s the federal EPA or the states?” Lin said.

Stetson University law professor Royal C. Gardner said citizen suits raising Maui-type arguments will likely arise in the same areas where they have before, including coal ash ponds and pipeline ruptures.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editor responsible for this story: Gregory Henderson at