Supreme Court Rules CWA Regulates Groundwater

July 8, 2020
supreme court groundwater ruling

On April 23, 2020, Justice Breyer, joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh, wrote the Court’s opinion that the Clean Water Act (CWA) does regulate the release of pollutants to groundwater sources that ultimately discharge to navigable waters. Justices Alito, Thomas, and Gorsuch dissented. This ruling dictates that a discharging entity must obtain a National Pollutant Discharge Elimination System (NPDES) permit to comply with CWA regulations.  The Court majority ruled that when a direct discharge from a point source into navigable waters exists or when there is the “functional equivalent of a direct discharge,” a permit is required. 

This case stems from a court battle between Maui County, Hawaii, and several local environmental groups who sued the County in 2012 for violation of CWA policies. They alleged that the County’s discharge allowed contaminants to migrate through the groundwater to the ocean.  Agreeing with the environmental groups, the Ninth Circuit determined that the County must be granted an NPDES permit for the discharge of “fairly traceable” pollutants to navigable waters from a point source to navigable waters. 
The Supreme Court noted that this “fairly traceable” test could cover pollutant discharges years after the initial release, granting broader authority to USEPA than what Congress intended. Yet, the Supreme Court also noted the complete exclusion of all discharges through groundwater from CWA regulation, as the federal government and County contended, is also not within the intent of the statute.

For a copy of the opinion, click here.
A copy of the NWPR is provided here, which will be effective 60 days after publication, barring a stay or other injunctive relief from litigation challenging the rule.

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