The effects of the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund have begun to ripple out. In County of Maui, the Court held that the Clean Water Act requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” The Court acknowledged the “difficulty with this approach” in dealing with the “middle instances,” and provided a non-exhaustive list of seven factors that may be considered in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. “Time and distance will be the most important factors in most cases, but not necessarily in every case,” the Court guided.
In Kinder Morgan Energy v. Upstate Forever, a Clean Water Act case seeking certiorari of a decision from the Fourth Circuit, the Supreme Court followed County of Maui by issuing an Order granting certiorari, vacating the Fourth Circuit’s decision, and remanding the case to the Court of Appeals for “further consideration in light of County of Maui.”
In Kinder Morgan Energy, two environmental groups argued that Kinder Morgan was illegally discharging pollutants into navigable waters without a permit under the Clean Water Act. Similar to the facts of the Maui case, the discharge by Kinder Morgan was alleged to pass from a leaking point source pipeline and “a short distance through the earth via ground water” before being discharged into navigable waters. The Fourth Circuit ruled in the plaintiffs’ favor because there was “a direct hydrological connection between groundwater and navigable waters.” However, in the wake of the Supreme Court’s decision and newly stated “functional equivalent” standard in County of Maui, the Fourth Circuit will now have to re-evaluate its decision.
Environmental advocacy groups, the regulated community, and courts across the nation will be interested in the outcome of Kinder Morgan Energy and how the Fourth Circuit applies the functional equivalent test.