What is the “functional equivalent of a direct discharge”? We’re going to start finding out soon

6 min

If you wanted concrete answers about federal jurisdiction over groundwater discharges, County of Maui v. Hawaii Wildlife Fund was disappointing. As the Supreme Court coyly acknowledged, its new "functional equivalent of a direct discharge" standard "does not, on its own, clearly explain how to deal with middle instances"—"middle instances" being a euphemism for most situations regulators and regulated entities are likely to face. The Court instead left those middle instances to be mapped out by lower court rulings in "individual cases" employing "the traditional common-law method." Which means we won't know the true contours of the County of Maui decision until we see how the lower courts apply it.

To get a head start on that project, this update summarizes several cases that will start to shape federal jurisdiction over groundwater discharges.

  • County of Maui itself may be the first case to apply the Court's new standard. The Ninth Circuit remanded the case back to the federal district court in Hawaii, which will have to consider whether discharge from the County of Maui's wastewater treatment facility is "the functional equivalent of a direct discharge." The wastewater facility collects sewage, partially treats it, and pumps the treated water through four wells hundreds of feet underground. Effluent containing pollutants travels from these underground wells approximately a half-mile through groundwater, reaching the Pacific Ocean within three months of discharge. Given the tone and substance of the Supreme Court's decision and the fact that the district court found jurisdiction over this discharge the first time around, we look for the district court to find federal jurisdiction over this discharge. That said, the County of Maui seems ready to take the case to trial again and has already asked the court for more discovery on the lines of evidence noted by the Supreme Court. If additional discovery is allowed, the case will depend on what is likely to be a substantial amount of new technical data and reports.
  • Upstate Forever v. Kinder Morgan Energy Partners (4th Circuit): The Supreme Court vacated and remanded the Fourth Circuit's decision in this case in light of County of Maui. The issue is a spill of several hundred thousand gallons of gasoline from a pipeline owned by Kinder Morgan in South Carolina. The gasoline seeped into nearby navigable waterways, having travelled a distance of 1,000 feet or less from the pipeline. As the Fourth Circuit previously found it undisputed that the ruptured pipeline caused the pollution, it seems likely to again find that this discharge falls within the scope of the CWA.
  • Prairie Rivers Network v. Dynegy Midwest Generation, LLC (7th Circuit): This citizen suit alleges that the owner of a retired coal power plant in Illinois violated the CWA by discharging pollutants into groundwater from several discrete seeps in its coal ash storage ponds, which are adjacent to the Middle Fork River. The district court rejected the Ninth Circuit’s conduit theory and granted the defendant’s motion to dismiss. On appeal, the Seventh Circuit stayed the case pending the Supreme Court’s decision in County of Maui. Since this case was decided on a motion to dismiss, the Seventh Circuit will first have to decide whether to remand for further fact-finding.
  • Matter of Reissuance of NPDES/SDS Permit to United States Steel Corp. (Minnesota Supreme Court): This case, which is currently pending before the Minnesota Supreme Court, involves an unlined tailings basin associated with a taconite iron ore mine. Water from the basin seeps into area groundwater. This "deep seepage" travels as groundwater, which, according to the Minnesota Pollution Control Agency, "may emerge into the surrounding wetlands, lakes or stream channels as baseflow, or may remain in the subsurface within the regional groundwater flow system." But the distance the seepage must travel before reaching navigable waters, and how long that trip takes, are not clear from the court's decision and MPCA's permit. A remand to develop those additional facts is possible in this case.
  • Stone v. High Mountain Mining Co. (District of Colorado): This case involves a gold mine alleged to be discharging pollutants into the South Platte River without an NPDES permit. The mine uses settling ponds located approximately 23.4 feet from the river. Plaintiffs allege that pollutants in the settling ponds travel through groundwater into surface waters. Relevant facts other than the ponds' distance from the river may need to be developed before the district court is able to apply the Supreme Court's test to this discharge.
  • Black Warrior River-Keeper, Inc. v. Drummond Co. (Northern District of Alabama): The district court stayed this case pending the Supreme Court's decision in County of Maui. Now the court will have to apply the "functional equivalent" standard to allegations that groundwater transports acid mine drainage from the site's drainage system to a nearby river. Additional facts about this discharge will likely need to be developed before the court can apply the County of Maui standard.
  • Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc. (District of Massachusetts): Treated sewage from the defendants' seasonal resort complex was deposited into 22 concrete leaching pits designed to convey it into the ground. According to the district court, these pits are within 100 to 500 feet of Wychmere Harbor and the channel that joins it to the Atlantic Ocean. The groundwater takes between 45 and 223 days, depending on the pathway, to reach the harbor or channel. After County of Maui, the parties decided to settle the case. Under the proposed consent decree, the defendant resort complex agrees to install a filtration system. Until the filtration system is in place, the facility will dispose of all effluent off-site, rather than discharging the effluent to the leaching pits.

To sum up: Because the Supreme Court identified "time" and "distance traveled" as key factors for determining jurisdiction, the plaintiffs in these cases seem likely to emphasize those points in these cases. That may lead to settlements, as in Longwood Venues, or adverse decisions for some of these dischargers. If so, the next round of post-County of Maui cases will likely push for federal jurisdiction over discharges that travel even longer distances and take even more time before reaching navigable waters.

But the Supreme Court's decision will also open new avenues of argument for defendants, especially in cases involving seepage from storage and disposal ponds. Section 402 of the Clean Water Act applies only to discharges from "point sources," and at least one case—Sierra Club v. Virginia Electric & Power Co., 903 F.3d 403 (4th Cir. 2018)—has held that a settling pond does not qualify as a point source. Because nothing in County of Maui directly addresses whether seepage from storage ponds into groundwater qualifies as a point source discharge, we expect new fights on that front as well.