The Clean Water Act: A Study in Contradictions

By Josh Bloom

Only one day after the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers formally published in the Federal Register their final revised regulations narrowing the breadth of “waters of the United States” under the Clean Water Act, the U.S. Supreme Court, in County of Maui v. Hawaii Wildlife Fund, arguably expanded the reach of the Act, ruling that point source discharges that reach navigable waters through groundwaters are subject to the Clean Water Act so long as the discharge is the “functional equivalent” of a direct discharge.

Under the Clean Water Act, an addition of a pollutant through a point source to a navigable water, i.e., a “water of the United States,” is subject to federal regulation under the Clean Water Act. Groundwater is not considered a water of the U.S., and a discharge to groundwater, whether through a point source or otherwise, is not within the reach of the Clean Water Act. Rather, regulation of groundwater has typically been a subject of state regulation, in view of states’ traditional and longstanding authority over land and groundwater within each respective state. The question raised in County of Maui, however, was whether the federal government has authority under the Clean Water Act to regulate discharges from a point source to groundwater and thereafter flow to a navigable water.

In an opinion authored by Justice Breyer, the Court held that a permit is required under the Clean Water Act “when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” In reaching its decision, the Court rejected the Ninth Circuit’s holding that such a discharge can be federally regulated where the pollutants that reach the navigable water are “fairly traceable” to the point source discharge, or, as further suggested by the Hawaii Wildlife Fund, there is a proximate cause relationship between the point source discharge and pollutants that enter the navigable water. The Court also rejected Maui’s and EPA’s counter suggestion that to be subject to the Clean Water Act, the point source discharge to the navigable water must have no intervening medium, such that a point source discharge to a groundwater that then connects to a navigable water can never be jurisdictional under the Clean Water Act.

The Court instead took a middle ground, and attempted to add some definition to what would be considered the “functional equivalent” of a direct discharge. According to Justice Breyer’s majority opinion, a discharge can be subject to the Clean Water Act “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” Justice Breyer further explained that “[w]hether pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge.” As an example, Justice Breyer offered that a pipe, i.e., point source, that ends a few feet away from the navigable water with nothing in between may be subject to federal regulation as opposed to a pipe that is 50 miles away from the navigable water and that discharge mixes with other materials before entering the navigable water. Justice Kavanaugh, in a concurring opinion, noted that consideration of “time and distance” would provide a foundation for a determination of what is a functional equivalent.

Justice Breyer acknowledged that the factors to be considered in assessing whether there is functional equivalence may be case and fact dependent, and that circuit courts would need to help define the contours of the standard. He nonetheless offered a non-exclusive list of factors that would weigh in that calculus:

(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case.

However, the Court’s ruling in County of Maui will surely not be the Court’s last say with regard to the Clean Water Act and the scope of “waters of the United States.” With issuance of the final rule redefining “waters of the United States,” EPA and the Corps have limited the scope of “waters” that will be subject to regulation. That limitation will be particularly noticeable in the western United States, where water bodies such vernal pools, arroyos, washes and ephemeral streams, to name a few, that are subject to precipitation or are otherwise irregular, will be left to state regulation. Although that may not make much of a difference in California, for example, which has a robust regulatory landscape, it could have significant impacts in other states, such as Arizona.

The basis for the revised definition of waters of the United States is derived from Justice Scalia’s plurality opinion in Rapanos v. United States that took a somewhat limited view of federal jurisdiction under the statute. Rapanos was the last of a trilogy of Supreme Court cases that addressed the issue. First, in United States v. Riverside Bayview Homes, the Court rendered an expansive view of the Clean Water Act, ruling that wetlands adjacent to navigable waters are subject to Clean Water Act jurisdiction. Next came Solid Waste Agency of Northern Cook County v. United States (SWANCC), which held that the fact that migratory birds used isolated waters could not confer federal Commerce Clause authority over those waters. Last was Rapanos, which was a fractured opinion in which the Scalia plurality would limit jurisdiction over the water bodies noted in the preceding paragraph, a dissent that would retain broad federal authority, and a concurrence by Justice Kennedy that opined that a non-navigable water could be subject to Clean Water Act jurisdiction where that water had a “significant nexus” to a navigable water. It was Justice Kennedy’s “significant nexus” test that the majority of district and circuit courts considered controlling under Rapanos.

EPA and the Corps, during the Obama administration in 2015, finalized a revised “waters of the United States” rule that paid deference to both SWANCC and the Rapanos significant nexus standard, and attempted to set some bright-line parameters. That regulation was subject to numerous lawsuits, injunctions, and stays, and then, barely a month into his term as president, Donald Trump issued an executive order directing his EPA to issue a new regulation that would track the Scalia plurality. The rule just finalized does just that. (Interestingly, Justice Kavanaugh, in concurring with the County of Maui majority that discharges to groundwaters can be regulated under the “functional equivalent” standard, noted that he believed that conclusion was consistent with the Scalia plurality in Rapanos.)

There is little question that the new “waters of the United States” rule will be subject to a plethora of litigation, both facially and in its application. What is fairly certain is that those challenges will once again put the Court front and center in being the arbiter of what is a “water of the United States.”

Joshua A. Bloom is a partner at Environmental General Counsel LLP.


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The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.