The Court ruled 6-3 that an NPDES permit is required if the addition of pollutants through groundwater is the “functional equivalent” of a direct release into navigable waters from a point source. Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh joined Justice Breyer’s opinion.
In crafting the “functional equivalent” test, the Court rejected the positions of both Petitioner and Respondent as too extreme. It found the Ninth Circuit’s “fairly traceable” test overbroad, sweeping in examples Congress did not intend such as pollutants carried on a bird’s wing. So too, the more narrowly tailored position of Respondents before the Supreme Court: They argued a permit was necessary whenever pollutants “actually and foreseeably reach navigable surface waters” and suggested the tort concept of proximate cause as a limiting principle. But the Court declined that proposal. Moreover, in a nod to federalism concerns, it observed “the structure of the [CWA] indicates that, as to groundwater pollution and nonpoint source pollution, Congress intended to leave substantial responsibility and autonomy to the States.”
But the Court also found the test offered by the County too narrow. The County proffered a “means of delivery test” under which an NPDES permit is necessary only when a point source is the final conveyance of pollution to navigable waters. If there was intervening media between the point source and navigable waters, no matter how brief in space or time, the discharge was exempt. The Trump Administration filed a brief in support of Maui County. It adopted a new position that discharges to groundwater are excluded from NPDES permitting, per a 2019 EPA “Interpretative Statement.”
The Court dismissed that position as a road map for evasion of the Act, violating its protectionist purpose. “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 [CWA],” Breyer admonished. Under the County’s approach, he theorized a discharger could “simply move the pipe back. . . a few yards, so that the pollution must travel through at least some groundwater before reaching the sea.”
After spurning the parties’ tests, Justice Breyer crafted his own. Focusing on the preposition “from” and its object “to” in the statutory text, he cogitated: Was the discharge to the surface water “from” the point source, the ground water, or both? He also explored everyday usage scenarios, from travelers to meat drippings in a pan. That linguistic analysis, paired with consideration of statutory purpose and structure resulted in the “functional equivalent” test. Justice Breyer explained “[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.”
But the Court acknowledged imprecision in its test. To facilitate implementation by courts and regulators, and provide guidance to the regulated community, Justice Breyer clarified the bounds of “functional equivalence.” “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater. . . the permitting requirement clearly applies.” At the other end of the spectrum, Justice Breyer advised that if the pipe “ends 50 miles from navigable waters” and “emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”
He also provided a non-exhaustive list of factors to consider: (1) transit time; (2) distance traveled; (3) nature of the material through which pollutants travel; (4) extent to which pollutants are diluted or chemically altered through the travel; (5) amount of pollutant entering the navigable waters relative to leaving the point source; (6) manner by or area in which the pollutant enters navigable waters; and (7) degree to which pollution maintains its identify during transit.
Justice Kavanaugh’s concurrence invoked Justice Scalia both in overt reference to his opinion in Rapanos, and in a fervent commitment to textualism regardless of its outcome. Justices Thomas and Gorsuch dissented, arguing the majority’s reading was not supported by the statutory text. Justice Alito dissented separately to emphasize the ruling created a vague standard, “invit[ing] arbitrary and inconsistent application.”
Because the Ninth Circuit applied a broader legal standard, the Court vacated that judgment and remanded the case for analysis under the “functional equivalent” test. Most believe, based on the decisions and factual findings below, the County will be required to get an NPDES permit and that the parties may finally settle.