The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the "discharge is the functional equivalent of a direct discharge from the point source into navigable waters."
I don't often say this about Supreme Court environmental decisions, but I think that the Court got it exactly right.
The apparent dilemma for the Court was that, on one hand, the CWA pretty clearly focuses on surface water discharges, largely leaving groundwater to the states. On the other hand, excluding all groundwater discharges from the CWA would create a massive loophole that could not have been intended by Congress. Justice Breyer, the Court's preeminent administrative law scholar, solved it elegantly and simply.
First, he addressed why the CWA must address at least some discharges to groundwater. As he noted, the "bright line" rule sought by the respondent (and the Trump administration) would allow a person currently discharging to surface waters to cut the pipe off so that the discharge now occurred 10 feet short of surface water, thus avoiding CWA jurisdiction. Justice Breyer found this untenable.
We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.
And I love that one of his clerks found a case from 1824
rejecting an interpretation that would facilitate "evasion of the law".
The other side of the dilemma was how to prevent the loophole without subjecting all or almost all groundwater discharges to CWA coverage. The 9th Circuit approach was to apply the CWA to any groundwater discharge where the surface water pollution is "fairly traceable" to the groundwater discharge. This was far too broad for SCOTUS to swallow. Justice Breyer's solution?
We hold that the statute 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.
Why didn't I think of that? And for those of you who think that this formulation is too vague, aside from asking rhetorically what would be a better definition, I'll note that Justice Breyer included a list of seven factors that courts may use in determining whether a groundwater discharge is the functional equivalent of a direct discharge.
Resolving this issue may not be rocket science, but it's a difficult legal issue that has evaded resolution for years. Kudos to Justice Breyer for finding a workable middle ground that avoids eviscerating the statute without subjecting untold number of groundwater discharges to CWA jurisdiction.
Well done!
Originally published by Foley Hoag, April 2020
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