In an important decision for agriculture, the Supreme Court ruled Thursday that Clean Water Act permits may be required when pollutants make their way through groundwater into a lake, river or other navigable water. 

But the justices said in the 6-3 decision that the permit requirement would be limited to cases where there is “the functional equivalent of a direct discharge from the point source into navigable waters.” The “functional equivalent” test would depend on several factors that could limit the ruling's impact on agriculture, including the time of the discharge and its distance from the navigable waters. 

The Ninth Circuit had held that a permit was required if pollutants that made their way to navigable waters through groundwater were “fairly traceable” to a point source. In this case, the point source is a wastewater treatment plant on the island, whose discharges are injected into groundwater before traveling through groundwater to reach the Pacific Ocean.

The case has attracted considerable interest from the agricultural community, which expressed concern in an amicus brief that farm operations could be subject to permitting requirements and enforcement if pollutants are found to be “fairly traceable” to farm operations.

Environmental groups supported the Ninth Circuit decision, while Maui County and the federal government argued that a permit should never be required when the pollutants travel through groundwater.

“Our view is that Congress did not intend the point source-permitting requirement to provide EPA with such broad authority as the Ninth Circuit’s narrow focus on traceability would allow,” Justice Stephen Breyer said in the opinion, writing for the court.

“At the same time,” the court said the act’s language “is significantly broader than the total exclusion of all discharges through groundwater described by Maui and the Solicitor General.”

Environmental groups applauded the decision.

David Henkin, an attorney with Earthjustice who represents the Hawaii Wildlife Fund, called it “a huge victory for clean water.”

“The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans,” Henkin said. “We will have to return to the lower court to confirm this, but we fully expect that Maui County’s sewage plant will be required to get a Clean Water Act permit as a result of the court’s decision today.”

Tim Bishop, an attorney with Mayer Brown in Chicago who represents ag groups in the case, said the Supreme Court "significantly reined in the Ninth Circuit’s broad standard that would have swept in everything 'fairly traceable' to a point source, altogether rejecting the idea of a standard that could sweep in pollutants that only travel into a navigable water in 'highly diluted forms' or 'years after their release.'" Bishop emphasized he was offering his personal views, not those of his clients.

On the "functional equivalent" test, Bishop said "the court explained that 'many factors' would be a part of this analysis, especially time and distance. The fact that the Court selected a multifactor test, coupled with its statement regarding the importance of state’s traditional roles and outright rejection of any standard that would sweep in discharges that only reach navigable waters in 'highly diluted forms,' suggests that the decision will not result in sweeping coverage, although it is bound to generate more litigation."

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Bishop added that his "main problem with the decision is that, as Justice Kennedy’s Rapanos opinion has shown us, fuzzy many-factor tests that encourage wasteful litigation really are not helpful to anyone except lawyers. Nixing the Ninth Circuit’s all-encompassing test is obviously a good thing, but the court should have adopted a bright line 'no groundwater' test and have left it to Congress if it wants something different."

As noted by the court, the CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.”

To interpret the word “from” as the Ninth Circuit did “would require a permit in surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers, or, to mention more mundane instances, the 100-year migration of pollutants through 250 miles of groundwater to a river,” the court said.

In declining to uphold the Ninth Circuit decision, Breyer wrote, “Perhaps most important, the structure of the statute indicates that, as to groundwater pollution and nonpoint source pollution, Congress intended to leave substantial responsibility and autonomy to the states.”

Justices Breyer, Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Brett Kavanaugh, as well as Chief Justice John Roberts, were in the majority. Justice Clarence Thomas wrote a dissent, which was joined by Justice Neil Gorsuch. Justice Samuel Alito wrote a separate dissent.

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