Supreme Court Decision a Win for Builders in County of Maui v. Hawaii Wildlife Fund
In a victory for NAHB and home builders, the U.S. Supreme Court on April 3 rendered a 6-3 decision in County of Maui v. Hawaii Wildlife Fund. The case concerns whether pollutants that enter groundwater — and then reach navigable waters — are regulated under the Clean Water Act.
Specifically, the County of Maui pumped effluent from its sewage treatment plant (through a pipe) into underground wells. From there, the pollutants leached into the groundwater and flowed into a nearby bay. There was no dispute that the county added the pollutants to the groundwater or that the pollutants entered the bay. It was also undisputed that the county did not have a permit to pollute the bay.
The Clean Water Act requires a person to have a permit if it adds pollutants "from any point source" to a navigable water. A "point source" is a discrete conveyance such as a pipe or ditch.
Maui argued that it did not need a permit because the pollutants came "from" the groundwater to the bay, as the groundwater was the last mode of delivery of the pollutants.
The environmental groups argued the opposite — that is, the pollutants came from the pipe (a point source) that Maui used to pump them into the groundwater. And because the pollutants came from a point source and entered a navigable water (the bay), the environmental groups argued a permit was necessary.
The Ninth Circuit Court of Appeals agreed with the environmental groups. If the pollutants were "fairly traceable" from the point source to the navigable water, it explained, then a permit was required.
The Supreme Court disagreed with the Ninth Circuit's "fairly traceable" test, but also disagreed with Maui's "last mode of delivery test."
The Supreme Court essentially created its own test. It held that a Clean Water Act permit is required "when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge." The Supreme Court remanded the case to determine whether the discharge in the Maui case is "functionally equivalent" to a direct discharge.