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County of Maui, Hawaii v. Hawaii Wildlife Fund

ELR Citation: 50 ELR 20102
Nos. 18-260, (U.S., 04/23/2020)

The U.S. Supreme Court held, 6-3, that the "functional equivalent of a direct discharge" of pollutants requires a CWA permit, and remanded for consideration of whether a discharge of pollutants into groundwater that later discharged into the Pacific Ocean meets this standard. Environmental groups argued a county wastewater reclamation facility in Maui, Hawaii was discharging pollutants into navigable waters without a permit, in violation of the CWA. The Ninth Circuit, affirming a district court ruling, concluded that a permit was required because the pollutants were "fairly traceable" from the point source—the reclamation facility—to a navigable water—the ocean. On appeal, the county argued the CWA created a bright-line test under which a pollutant is deemed to come from a point source only if the source is the last conveyance that conducted the pollutant to navigable waters, and thus that if at least one nonpoint source lies between the point source and the navigable water, the permit requirement does not apply. The Supreme Court agreed that the reach of the CWA phrase "from any point source" was limited to a narrower range of circumstances than the Ninth Circuit's interpretation suggested, but that it was significantly broader than the total exclusion of all discharges through groundwater asserted by the county. It concluded, instead, that the CWA requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. Because the Ninth Circuit applied a different standard, the Court vacated its judgment and remanded for further proceedings. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Kavanaugh, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined. Alito, J., filed a dissenting opinion.