On April 23, 2020, in a 6-3 decision, the Supreme Court decided County of Maui, Hawai’i v. Hawai’i Wildlife Fund and vacated and remanded the case. The Court held that the Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, 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.
Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.
The 6-3 opinion was given by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.
To discuss the case, we have Glenn Roper, attorney at the Pacific Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.