County of Maui v. Hawaii Wildlife Fund ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE
FUND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 18–260. Argued November 6, 2019—Decided April 23, 2020
The Clean Water Act forbids “any addition” of any pollutant from “any
point source” to “navigable waters” without an appropriate permit
from the Environmental Protection Agency (EPA). §§ 301(a), 502(12),
86 Stat. 844, 886. The Act defines “pollutant” broadly, §502(6); defines
a “point source” as “ ‘any discernible, confined and discrete conveyance
. . . from which pollutants are or may be discharged,’ ” including, e.g.,
any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel, conduit,’ ” or “ ‘well,’ ”
§502(14); and defines the term “discharge of a pollutant” as “ ‘any ad-
dition of any pollutant to navigable waters [including navigable
streams, rivers, the ocean, or coastal waters] from any point source,’ ”
§502(12). It then uses those terms in making “unlawful” “ ‘the dis-
charge of any pollutant by any person’ ” without an appropriate permit.
§301.
Petitioner County of Maui’s wastewater reclamation facility collects
sewage from the surrounding area, partially treats it, and each day
pumps around 4 million gallons of treated water into the ground
through four wells. This effluent then travels about a half mile,
through groundwater, to the Pacific Ocean. Respondent environmen-
tal groups brought a citizens’ Clean Water Act suit, alleging that Maui
was “discharg[ing]” a “pollutant” to “navigable waters” without the re-
quired permit. The District Court found that the discharge from
Maui’s wells into the nearby groundwater was “functionally one into
navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judg-
ment to the environmental groups. The Ninth Circuit affirmed, stat-
ing that a permit is required when “pollutants are fairly traceable from
the point source to a navigable water.” 886 F.3d 737, 749.
Held: The statutory provisions at issue require a permit when there is a
2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Syllabus
direct discharge from a point source into navigable waters or when
there is the functional equivalent of a direct discharge. Pp. 4–18.
(a) Statutory context limits the reach of the phrase “from any point
source” to a range of circumstances narrower than that which the
Ninth Circuit’s “fairly traceable” interpretation suggests. At the same
time, it is significantly broader than the total exclusion of all dis-
charges through groundwater, as urged by Maui and by the Solicitor
General as amicus curiae. Pp. 4–5.
(b) The Ninth Circuit’s “fairly traceable” limitation could allow EPA
to assert permitting authority over the release of pollutants that reach
navigable waters many years after their release. But Congress did not
intend to provide EPA with such broad authority. First, to interpret
“from” so broadly might require a permit in unexpected circumstances,
such as, e.g., the 100-year migration of pollutants through 250 miles of
groundwater to a river. Second, the statute’s structure indicates that,
as to groundwater pollution and nonpoint source pollution, Congress
left substantial responsibility and autonomy to the States and did not
give EPA authority that could seriously interfere with this state re-
sponsibility. Third, the Act’s legislative history strongly supports the
conclusion that the permitting provision does not extend so far. Fi-
nally, longstanding regulatory practice shows that EPA has success-
fully applied the permitting provision to pollution discharges from
point sources that reached navigable waters through groundwater
using a narrower interpretation than that of the Ninth Circuit. Pp. 5–
10.
(c) Maui, the Government, and the two dissents argue for interpre-
tations that, in light of the statute’s language, structure, and purposes,
are also too extreme. Pp. 10–15.
(1) Maui and the Solicitor General argue that the statute’s per-
mitting requirement does not apply if a pollutant, having emerged
from a “point source,” must travel through any amount of groundwater
before reaching navigable waters. That narrow interpretation would
risk serious interference with EPA’s ability to regulate point source
discharges, and Congress would not have intended to create such a
large and obvious loophole in one of the Clean Water Act’s key regula-
tory innovations. P. 10.
(2) Reading “from” in the phrase “from any point source” together
with “conveyance” in the point source definition “any . . . conveyance,”
Maui argues that the meaning of “from any point source” is not about
where the pollution originated, but about how it got there. Thus, Maui
claims, a permit is required only if a point source ultimately delivers
the pollutant to navigable waters. By contrast, if a pollutant travels
through groundwater, then the groundwater is the conveyance and no
permit is required. But Maui’s definition of “from” as connoting a
Cite as: 590 U. S. ____ (2020) 3
Syllabus
means does not fit in context. Coupling “from” with “to” is strong evi-
dence that Congress was referring to a destination (“navigable wa-
ters”) and an origin (“any point source”). That Maui’s reading would
create a serious loophole in the permitting regime also indicates that
it is unreasonable. Pp. 10–11.
(3) The Solicitor General argues that the proper interpretation of
the statute is the one reflected in EPA’s recent Interpretive Statement,
namely, that “all releases of pollutants to groundwater” are excluded
from the scope of the permitting program, “even where pollutants are
conveyed to jurisdictional surface waters via groundwater.” 84 Fed.
Reg. 16810, 16811. That reading, which would open a loophole allow-
ing easy evasion of the statutory provision’s basic purposes, is neither
persuasive nor reasonable. EPA is correct that Congress did not re-
quire a permit for all discharges to groundwater, and it did authorize
study and funding related to groundwater pollution. But the most that
the study and funding provisions show is that Congress thought that
the problem of pollution in groundwater would primarily be addressed
by the States or perhaps by other federal statutes. EPA’s new inter-
pretation is also difficult to reconcile with the statute’s reference to
“any addition” of a pollutant to navigable waters; with the statute’s
inclusion of “wells” in the “point source” definition, since wells would
ordinarily discharge pollutants through groundwater; and with statu-
tory provisions that allow EPA to delegate its permitting authority to
a State only if the State, inter alia, provides “ ‘adequate authority’ ” to
“ ‘control the disposal of pollutants into wells,’ ” §402(b). Pp. 11–13.
(4) Perhaps, as the dissents suggest, the statute’s language could
be narrowed by reading the statute to refer only to the pollutant’s im-
mediate origin, but there is no linguistic basis for this limitation.
Pp. 13–15.
(d) The statute’s words reflect Congress’ basic aim to provide federal
regulation of identifiable sources of pollutants entering navigable wa-
ters without undermining the States’ longstanding regulatory author-
ity over land and groundwater. The reading of the statute that best
captures Congress’ meaning, reflected in the statute’s words, struc-
ture, and purposes, is that a permit is required when there is a dis-
charge from a point source directly into navigable waters or when
there is the functional equivalent of a direct discharge. Many factors
may be relevant to determining whether a particular discharge is the
functional equivalent of one directly into navigable waters. Time and
distance will be the most important factors in most cases, but other
relevant factors may include, e.g., the nature of the material through
which the pollutant travels and the extent to which the pollutant is
diluted or chemically changed as it travels. Courts will provide addi-
tional guidance through decisions in individual cases. The underlying
4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Syllabus
statutory objectives can also provide guidance, and EPA can provide
administrative guidance. Although this interpretation does not pre-
sent as clear a line as the other interpretations proffered, the EPA has
applied the permitting provision to some discharges through ground-
water for over 30 years, with no evidence of inadministrability or an
unmanageable expansion in the statute’s scope. Pp. 15–18.
886 F.3d 737, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAV-
ANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting
opinion, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opin-
ion.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–260
_________________
COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII
WILDLIFE FUND, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2020]
JUSTICE BREYER delivered the opinion of the Court.
The Clean Water Act forbids the “addition” of any pollu-
tant from a “point source” to “navigable waters” without the
appropriate permit from the Environmental Protection
Agency (EPA). Federal Water Pollution Control Act,
§§301(a), 502(12)(A), as amended by the Federal Water Pol-
lution Control Act Amendments of 1972 (Clean Water Act)
§2, 86 Stat. 844, 886, 33 U.S. C. §§1311(a), 1362(12)(A).
The question presented here is whether the Act “requires a
permit when pollutants originate from a point source but
are conveyed to navigable waters by a nonpoint source,”
here, “groundwater.” Pet. for Cert. i. Suppose, for example,
that a sewage treatment plant discharges polluted water
into the ground where it mixes with groundwater, which, in
turn, flows into a navigable river, or perhaps the ocean.
Must the plant’s owner seek an EPA permit before emitting
the pollutant? We conclude that the statutory provisions at
issue require a permit if the addition of the pollutants
through groundwater is the functional equivalent of a direct
discharge from the point source into navigable waters.
2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
I
A
Congress’ purpose as reflected in the language of the
Clean Water Act is to “ ‘restore and maintain the . . . integ-
rity of the Nation’s waters,’ ” §101(a), 86 Stat. 816. Prior to
the Act, Federal and State Governments regulated water
pollution in large part by setting water quality standards.
See EPA v. California ex rel. State Water Resources Control
Bd., 426 U.S. 200, 202–203 (1976). The Act restructures
federal regulation by insisting that a person wishing to dis-
charge any pollution into navigable waters first obtain
EPA’s permission to do so. See id., at 203–205; Milwaukee
v. Illinois, 451 U.S. 304, 310–311 (1981).
The Act’s provisions use specific definitional language to
achieve this result. First, the Act defines “pollutant”
broadly, including in its definition, for example, any solid
waste, incinerator residue, “ ‘heat,’ ” “ ‘discarded equip-
ment,’ ” or sand (among many other things). §502(6), 86
Stat. 886. Second, the Act defines a “point source” as “ ‘any
discernible, confined and discrete conveyance . . . from
which pollutants are or may be discharged,’ ” including, for
example, any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel,
conduit,’ ” or “ ‘well.’ ” §502(14), id., at 887. Third, it defines
the term “discharge of a pollutant” as “ ‘any addition of any
pollutant to navigable waters [including navigable streams,
rivers, the ocean, or coastal waters] from any point source.’ ”
§502(12), id., at 886.
The Act then sets forth a statutory provision that, using
these terms, broadly states that (with certain exceptions)
“ ‘the discharge of any pollutant by any person’ ” without an
appropriate permit “ ‘shall be unlawful.’ ” §301, id., at 844.
The question here, as we have said, is whether, or how, this
statutory language applies to a pollutant that reaches nav-
igable waters only after it leaves a “point source” and then
travels through groundwater before reaching navigable wa-
ters. In such an instance, has there been a “discharge of a
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
pollutant,” that is, has there been “any addition of any pol-
lutant to navigable waters from any point source? ”
B
The petitioner, the County of Maui, operates a
wastewater reclamation facility on the island of Maui, Ha-
waii. The facility collects sewage from the surrounding
area, partially treats it, and pumps the treated water
through four wells hundreds of feet underground. This ef-
fluent, amounting to about 4 million gallons each day, then
travels a further half mile or so, through groundwater, to
the ocean.
In 2012, several environmental groups, the respondents
here, brought this citizens’ Clean Water Act lawsuit against
Maui. See §505(a), id., at 888. They claimed that Maui was
“discharg[ing]” a “pollutant” to “navigable waters,” namely,
the Pacific Ocean, without the permit required by the Clean
Water Act. The District Court, relying in part upon a de-
tailed study of the discharges, found that a considerable
amount of effluent from the wells ended up in the ocean (a
navigable water). It wrote that, because the “path to the
ocean is clearly ascertainable,” the discharge from Maui’s
wells into the nearby groundwater was “functionally one
into navigable water.” 24 F. Supp. 3d 980, 998 (Haw. 2014).
And it granted summary judgment in favor of the environ-
mental groups. See id., at 1005.
The Ninth Circuit affirmed the District Court, but it de-
scribed the relevant statutory standard somewhat differ-
ently. The appeals court wrote that a permit is required
when “the pollutants are fairly traceable from the point
source to a navigable water such that the discharge is the
functional equivalent of a discharge into the navigable wa-
ter.” 886 F.3d 737, 749 (2018) (emphasis added). The court
left “for another day the task of determining when, if ever,
the connection between a point source and a navigable wa-
ter is too tenuous to support liability . . . .” Ibid.
4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
Maui petitioned for certiorari. In light of the differences
in the standards adopted by the different Courts of Appeals,
we granted the petition. Compare, e.g., 886 F.3d, at 749
(“fairly traceable”), with Upstate Forever v. Kinder Morgan
Energy Partners, L. P., 887 F.3d 637, 651 (CA4 2018) (“di-
rect hydrological connection”), and Kentucky Waterways Al-
liance v. Kentucky Util. Co., 905 F.3d 925, 932–938 (CA6
2018) (discharges through groundwater are excluded from
the Act’s permitting requirements).
II
The linguistic question here concerns the statutory word
“from.” Is pollution that reaches navigable waters only
through groundwater pollution that is “from” a point
source, as the statute uses the word? The word “from” is
broad in scope, but context often imposes limitations. “Fin-
land,” for example, is often not the right kind of answer to
the question, “Where have you come from?” even if long ago
you were born there.
The parties here disagree dramatically about the scope of
the word “from” in the present context. The environmental
groups, the respondents, basically adopt the Ninth Circuit’s
view—that the permitting requirement applies so long as
the pollutant is “fairly traceable” to a point source even if it
traveled long and far (through groundwater) before it
reached navigable waters. They add that the release from
the point source must be “a proximate cause of the addition
of pollutants to navigable waters.” Brief for Respondents
20.
Maui, on the other hand, argues that the statute creates
a “bright-line test.” Brief for Petitioner 27–28. A point
source or series of point sources must be “the means of de-
livering pollutants to navigable waters.” Id., at 28. They
add that, if “at least one nonpoint source (e.g., unconfined
rainwater runoff or groundwater)” lies “between the point
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
source and the navigable water,” then the permit require-
ment “does not apply.” Id., at 54. A pollutant is “from” a
point source only if a point source is the last “conveyance”
that conducted the pollutant to navigable waters.
The Solicitor General, as amicus curiae, supports Maui,
at least in respect to groundwater. Reiterating the position
taken in a recent EPA “Interpretive Statement,” see 84 Fed.
Reg. 16810 (2019), he argues that, given the Act’s structure
and history, “a release of pollutants to groundwater is not
subject to” the Act’s permitting requirement “even if the
pollutants subsequently migrate to jurisdictional surface
waters,” such as the ocean. Brief for United States as Ami-
cus Curiae 12 (capitalization omitted).
We agree that statutory context limits the reach of the
statutory phrase “from any point source” to a range of cir-
cumstances narrower than that which the Ninth Circuit’s
interpretation suggests. At the same time, it is signifi-
cantly broader than the total exclusion of all discharges
through groundwater described by Maui and the Solicitor
General.
III
Virtually all water, polluted or not, eventually makes its
way to navigable water. This is just as true for groundwa-
ter. See generally 2 Van Nostrand’s Scientific Encyclopedia
2600 (10th ed. 2008) (defining “Hydrology”). Given the
power of modern science, the Ninth Circuit’s limitation,
“fairly traceable,” may well allow EPA to assert permitting
authority over the release of pollutants that reach naviga-
ble waters many years after their release (say, from a well
or pipe or compost heap) and in highly diluted forms. See,
e.g., Brief for Aquatic Scientists et al. as Amici Curiae
13–28.
The respondents suggest that the standard can be nar-
rowed by adding a “proximate cause” requirement. That is,
to fall within the permitting provision, the discharge from
6 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
a point source must “proximately cause” the pollutants’
eventual addition to navigable waters. But the term “prox-
imate cause” derives from general tort law, and it takes on
its specific content based primarily on “policy” considera-
tions. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 701
(2011) (plurality opinion). In the context of water pollution,
we do not see how it significantly narrows the statute be-
yond the words “fairly traceable” themselves.
Our view is that Congress did not intend the point source-
permitting requirement to provide EPA with such broad au-
thority as the Ninth Circuit’s narrow focus on traceability
would allow. First, to interpret the word “from” in this lit-
eral way 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.
Second, and perhaps most important, the structure of the
statute indicates that, as to groundwater pollution and non-
point source pollution, Congress intended to leave substan-
tial responsibility and autonomy to the States. See, e.g.,
§101(b), 86 Stat. 816 (stating Congress’ purpose in this re-
gard). Much water pollution does not come from a readily
identifiable source. See 3 Van Nostrand’s Scientific Ency-
clopedia, at 5801 (defining “Water Pollution”). Rainwater,
for example, can carry pollutants (say, as might otherwise
collect on a roadway); it can pollute groundwater, and pol-
lution collected by unchanneled rainwater runoff is not or-
dinarily considered point source pollution. Over many dec-
ades, and with federal encouragement, the States have
developed methods of regulating nonpoint source pollution
through water quality standards, and otherwise. See, e.g.,
Nonpoint Source Program, Annual Report (California) 6
(2016–2017) (discussing state timberland management pro-
grams to address addition of sediment-pollutants to navi-
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
gable waters); id., at 10–11 (discussing regulations of vine-
yards to control water pollution); id. at 17–19 (discussing
livestock grazing management, including utilization ratios
and time restrictions); Nonpoint Source Management Pro-
gram, Annual Report (Maine) 8–10 (2018) (discussing in-
stallation of livestock fencing and planting of vegetation to
reduce nonpoint source pollution); Oklahoma’s Nonpoint
Source Management Program, Annual Report 5, 14 (2017)
(discussing program to encourage voluntary no-till farming
to reduce sediment pollution).
The Act envisions EPA’s role in managing nonpoint
source pollution and groundwater pollution as limited to
studying the issue, sharing information with and collecting
information from the States, and issuing monetary grants.
See §§105, 208, 86 Stat. 825, 839; see also Water Quality
Act of 1987, §316, 101 Stat. 52 (establishing Nonpoint
Source Management Programs). Although the Act grants
EPA specific authority to regulate certain point source pol-
lution (it can also delegate some of this authority to the
States acting under EPA supervision, see §402(b), 86 Stat.
880), these permitting provisions refer to “point sources”
and “navigable waters,” and say nothing at all about non-
point source regulation or groundwater regulation. We
must doubt that Congress intended to give EPA the author-
ity to apply the word “from” in a way that could interfere as
seriously with States’ traditional regulatory authority—au-
thority the Act preserves and promotes—as the Ninth Cir-
cuit’s “fairly traceable” test would.
Third, those who look to legislative history to help inter-
pret a statute will find that this Act’s history strongly
supports our conclusion that the permitting provision does not
extend so far. Fifty years ago, when Congress was consid-
ering the bills that became the Clean Water Act, William
Ruckelshaus, the first EPA Administrator, asked Congress
to grant EPA authority over “ground waters” to “assure that
8 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
we have control over the water table . . . so we can . . . main-
tai[n] a control over all the sources of pollution, be they dis-
charged directly into any stream or through the ground wa-
ter table.” Water Pollution Control Legislation–1971
(Proposed Amendments to Existing Legislation): Hearings
before the House Committee on Public Works, 92d Cong.,
1st Sess., 230 (1971). Representative Les Aspin similarly
pointed out that there were “conspicuou[s ]” references to
groundwater in all sections of the bill except the permitting
section at issue here. Water Pollution Control Legislation–
1971: Hearings before the House Committee on Public
Works on H. R. 11896 and H. R. 11895, 92d Cong., 1st Sess.,
727 (1972). The Senate Committee on Public Works “recog-
nize[d] the essential link between ground and surface wa-
ters.” S. Rep. No. 92–414, p. 73 (1971).
But Congress did not accept these requests for general
EPA authority over groundwater. It rejected Representa-
tive Aspin’s amendment that would have extended the per-
mitting provision to groundwater. Instead, Congress pro-
vided a set of more specific groundwater-related measures
such as those requiring States to maintain “affirmative con-
trols over the injection or placement in wells” of “any pollu-
tants that may affect ground water.” Ibid. These specific
state-related programs were, in the words of the Senate
Public Works Committee, “designed to protect ground wa-
ters and eliminate the use of deep well disposal as an un-
controlled alternative to toxic and pollution control.” Ibid.
The upshot is that Congress was fully aware of the need to
address groundwater pollution, but it satisfied that need
through a variety of state-specific controls. Congress left
general groundwater regulatory authority to the States; its
failure to include groundwater in the general EPA permit-
ting provision was deliberate.
Finally, longstanding regulatory practice undermines the
Ninth Circuit’s broad interpretation of the statute. EPA it-
self for many years has applied the permitting provision to
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
pollution discharges from point sources that reached navi-
gable waters only after traveling through groundwater.
See, e.g., United States Steel Corp. v. Train, 556 F.2d 822,
832 (CA7 1977) (permit for “deep waste-injection well” on
the shore of navigable waters). But, in doing so, EPA fol-
lowed a narrower interpretation than that of the Ninth Cir-
cuit. See, e.g., In re Bethlehem Steel Corp., 2 E. A. D. 715,
718 (EAB 1989) (Act’s permitting requirement applies only
to injection wells “that inject into ground water with a phys-
ically and temporally direct hydrologic connection to sur-
face water”). EPA has opposed applying the Act’s permit-
ting requirements to discharges that reach groundwater
only after lengthy periods. See McClellan Ecological Seep-
age Situation (MESS) v. Cheney, 763 F. Supp. 431, 437 (ED
Cal. 1989) (United States argued that permitting provisions
do not apply when it would take “literally dozens, and per-
haps hundreds, of years for any pollutants” to reach navi-
gable waters); Greater Yellowstone Coalition v. Larson, 641
F. Supp. 2d 1120, 1139 (Idaho 2009) (same in respect to in-
stances where it would take “between 60 and 420 years” for
pollutants to travel “one to four miles” through groundwa-
ter before reaching navigable waters). Indeed, in this very
case (prior to its recent Interpretive Statement, see infra,
at 12–13), EPA asked the Ninth Circuit to apply a more lim-
ited “direct hydrological connection” test. See Brief for
United States as Amicus Curiae in No. 15–17447 (CA9), pp.
13–20. The Ninth Circuit did not accept this suggestion.
We do not defer here to EPA’s interpretation of the stat-
ute embodied in this practice. Indeed, EPA itself has
changed its mind about the meaning of the statutory provi-
sion. See infra, at 12–14. But this history, by showing that
a comparatively narrow view of the statute is administra-
tively workable, offers some additional support for the view
that Congress did not intend as broad a delegation of regu-
latory authority as the Ninth Circuit test would allow.
As we have said, the specific meaning of the word “from”
10 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
necessarily draws its meaning from context. The apparent
breadth of the Ninth Circuit’s “fairly traceable” approach is
inconsistent with the context we have just described.
IV
A
Maui and the Solicitor General argue that the statute’s
permitting requirement does not apply if a pollutant, hav-
ing emerged from a “point source,” must travel through any
amount of groundwater before reaching navigable waters.
That interpretation is too narrow, for it would risk serious
interference with EPA’s ability to regulate ordinary point
source discharges.
Consider a pipe that spews pollution directly into coastal
waters. There is an “addition of ” a “pollutant to navigable
waters from [a] point source.” Hence, a permit is required.
But Maui and the Government read the permitting require-
ment not to apply if there is any amount of groundwater
between the end of the pipe and the edge of the navigable
water. See Tr. of Oral Arg. 5–6, 24–25. If that is the correct
interpretation of the statute, then why could not the pipe’s
owner, seeking to avoid the permit requirement, simply
move the pipe back, perhaps only a few yards, so that the
pollution must travel through at least some groundwater
before reaching the sea? Cf. Brief for State of Maryland et
al. as Amici Curiae 9, n. 4. We do not see how Congress
could have intended to create such a large and obvious loop-
hole in one of the key regulatory innovations of the Clean
Water Act. Cf. California ex rel. State Water Resources Con-
trol Bd., 426 U.S., at 202–204 (basic purpose of Clean Wa-
ter Act is to regulate pollution at its source); The Emily, 9
Wheat. 381, 390 (1824) (rejecting an interpretation that
would facilitate “evasion of the law”).
B
Maui argues that the statute’s language requires its
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
reading. That language requires a permit for a “discharge.”
A “discharge” is “any addition” of a pollutant to navigable
waters “from any point source.” And a “point source” is “any
discernible, confined and discrete conveyance” (such as a
pipe, ditch, well, etc.). Reading “from” and “conveyance” to-
gether, Maui argues that the statutory meaning of “from
any point source” is not about where the pollution origi-
nated, but about how it got there. Under what Maui calls
the means-of-delivery test, a permit is required only if a
point source itself ultimately delivers the pollutant to nav-
igable waters. Under this view, if the pollutant must travel
through groundwater to reach navigable waters, then it is
the groundwater, not the pipe, that is the conveyance.
Congress sometimes adopts less common meanings of
common words, but this esoteric definition of “from,” as con-
noting a means, does not remotely fit in this context. The
statute couples the word “from” with the word “to”—strong
evidence that Congress was referring to a destination (“nav-
igable waters”) and an origin (“any point source”). Further
underscoring that Congress intended this every day mean-
ing is that the object of “from” is a “point source”—a source,
again, connoting an origin. That Maui’s proffered interpre-
tation would also create a serious loophole in the permitting
regime also indicates it is an unreasonable one.
C
The Solicitor General agrees that, as a general matter,
the permitting requirement applies to at least some addi-
tions of pollutants to navigable waters that come indirectly
from point sources. See Brief for United States as Amicus
Curiae 33–35. But the Solicitor General argues that the
proper interpretation of the statute is the one reflected in
EPA’s recent Interpretive Statement. After receiving more
than 50,000 comments from the public, and after the Ninth
Circuit released its opinion in this case, EPA wrote that
12 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
“the best, if not the only, reading” of the statutory provi-
sions is that “all releases of pollutants to groundwater” are
excluded from the scope of the permitting program, “even
where pollutants are conveyed to jurisdictional surface wa-
ters via groundwater.” 84 Fed. Reg. 16810, 16811.
Neither the Solicitor General nor any party has asked us
to give what the Court has referred to as Chevron deference
to EPA’s interpretation of the statute. See Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 844 (1984). Even so, we often pay particular attention
to an agency’s views in light of the agency’s expertise in a
given area, its knowledge gained through practical experi-
ence, and its familiarity with the interpretive demands of
administrative need. See United States v. Mead Corp., 533
U.S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323
U.S. 134, 139–140 (1944). But here, as we have explained,
to follow EPA’s reading would open a loophole allowing easy
evasion of the statutory provision’s basic purposes. Such an
interpretation is neither persuasive nor reasonable.
EPA correctly points out that Congress did not require a
permit for all discharges to groundwater; rather, Congress
authorized study and funding related to groundwater pol-
lution. See Brief for United States as Amicus Curiae 15–
19. But there is quite a gap between “not all” and “none.”
The statutory text itself alludes to no exception for dis-
charges through groundwater. These separate provisions
for study and funding that EPA points to would be a “sur-
prisingly indirect route” to convey “an important and easily
expressed message”—that the permit requirement simply
does not apply if the pollutants travel through groundwa-
ter. Landgraf v. USI Film Products, 511 U.S. 244, 262
(1994). In truth, the most these provisions show is that
Congress thought that the problem of groundwater pollu-
tion, as distinct from navigable water pollution, would pri-
marily be addressed by the States or perhaps by other fed-
eral statutes.
Cite as: 590 U. S. ____ (2020) 13
Opinion of the Court
EPA’s new interpretation is also difficult to reconcile with
the statute’s reference to “any addition” of a pollutant to
navigable waters. Cf. Milwaukee, 451 U.S., at 318 (“Every
point source discharge is prohibited unless covered by a per-
mit” (footnote omitted)). It is difficult to reconcile EPA’s in-
terpretation with the statute’s inclusion of “wells” in the
definition of “point source,” for wells most ordinarily would
discharge pollutants through groundwater. And it is diffi-
cult to reconcile EPA’s interpretation with the statutory
provisions that allow EPA to delegate its permitting au-
thority to a State only if the State (among other things) pro-
vides “ ‘adequate authority’ ” to “ ‘control the disposal of pol-
lutants into wells.’ ” §402(b), 86 Stat. 881. What need
would there be for such a proviso if the federal permitting
program the State replaces did not include such discharges
(from wells through groundwater) in the first place?
In short, EPA’s oblique argument about the statute’s ref-
erences to groundwater cannot overcome the statute’s
structure, its purposes, or the text of the provisions that ac-
tually govern.
D
Perhaps, as the two dissents suggest, the language could
be narrowed to similar effect by reading the statute to refer
only to the pollutant’s immediate origin. See post, at 2–3
(opinion of THOMAS, J.); post, at 8 (opinion of ALITO, J.). But
there is no linguistic basis here to so limit the statute in
that way. Again, whether that is the correct reading turns
on context. JUSTICE THOMAS insists that in the case of a
discharge through groundwater, the pollutants are added
“from the groundwater.” Post, at 2. Indeed, but that does
not mean they are not also “from the point source.” Ibid.
When John comes to the hotel, John might have come from
the train station, from Baltimore, from Europe, from any
two of those three places, or from all three. A sign that asks
all persons who arrive from Baltimore to speak to the desk
14 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
clerk includes those who took a taxi from the train station.
There is nothing unnatural about such a construction. As
the plurality correctly noted in Rapanos v. United States,
547 U.S. 715 (2006), the statute here does not say “directly”
from or “immediately” from. Id., at 743 (opinion of Scalia,
J.). Indeed, the expansive language of the provision—any
addition from any point source—strongly suggests its scope
is not so limited.
JUSTICE ALITO appears to believe that there are only two
possible ways to read “from”: as referring either to the im-
mediate source, or else to the original source. Post, at 5, 8.
Because he agrees that the statute cannot reasonably be
read always to reach the original source, he concludes the
statute must refer only to the immediate origin. But as the
foregoing example illustrates, context may indicate that
“from” includes an intermediate stop—Baltimore, not Eu-
rope or the train station.
JUSTICE THOMAS relies on the word “addition,” but we fail
to see how that word limits the statute to discharges di-
rectly to navigable waters. Ordinary language abounds in
counter examples: A recipe might instruct to “add the drip-
pings from the meat to the gravy”; that instruction does not
become incomprehensible, or even peculiar, simply because
the drippings will have first collected in a pan or on a cut-
ting board. And while it would be an unusual phrasing (as
statutory phrasings often are), we do not see how the rec-
ipe’s meaning would transform if it instead said to “add the
drippings to the gravy from the meat.” To take another ex-
ample: If Timmy is told to “add water to the bath from the
well” he will know just what it means—even though he will
have to use a bucket to complete the task.
And although JUSTICE THOMAS resists the inevitable im-
plications of his reading of the statute, post, at 5–6, that
reading would create the same loopholes as those offered by
the petitioner and the Government, and more. It would nec-
essarily exclude a pipe that drains onto the beach next to
Cite as: 590 U. S. ____ (2020) 15
Opinion of the Court
navigable waters, even if the pollutants then flow to those
waters. It also seems to exclude a pipe that hangs out over
the water and adds pollutants to the air, through which the
pollutants fall to navigable waters. The absurdity of such
an interpretation is obvious enough.
We therefore reject this reading as well: Like Maui’s and
the Government’s, it is inconsistent with the statutory text
and simultaneously creates a massive loophole in the per-
mitting scheme that Congress established.
E
For the reasons set forth in Part III and in this Part, we
conclude that, in light of the statute’s language, structure,
and purposes, the interpretations offered by the parties, the
Government, and the dissents are too extreme.
V
Over the years, courts and EPA have tried to find general
language that will reflect a middle ground between these
extremes. The statute’s words reflect Congress’ basic aim
to provide federal regulation of identifiable sources of pol-
lutants entering navigable waters without undermining the
States’ longstanding regulatory authority over land and
groundwater. We hold that the statute 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. We think this phrase best captures,
in broad terms, those circumstances in which Congress in-
tended to require a federal permit. That is, an addition falls
within the statutory requirement that it be “from any point
source” when a point source directly deposits pollutants
into navigable waters, or when the discharge reaches the
same result through roughly similar means.
Time and distance are obviously important. Where a pipe
ends a few feet from navigable waters and the pipe emits
pollutants that travel those few feet through groundwater
16 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
(or over the beach), the permitting requirement clearly ap-
plies. If the pipe ends 50 miles from navigable waters and
the pipe 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.
The object in a given scenario will be to advance, in a
manner consistent with the statute’s language, the statu-
tory purposes that Congress sought to achieve. As we have
said (repeatedly), the word “from” seeks a “point source”
origin, and context imposes natural limits as to when a
point source can properly be considered the origin of pollu-
tion that travels through groundwater. That context in-
cludes the need, reflected in the statute, to preserve state
regulation of groundwater and other nonpoint sources of
pollution. Whether pollutants that arrive at navigable wa-
ters 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.
The difficulty with this approach, we recognize, is that it
does not, on its own, clearly explain how to deal with middle
instances. But there are too many potentially relevant fac-
tors applicable to factually different cases for this Court
now to use more specific language. Consider, for example,
just some of the factors that may prove relevant (depending
upon the circumstances of a particular case): (1) transit
time, (2) distance traveled, (3) the nature of the material
through which the pollutant travels, (4) the extent to which
the pollutant is diluted or chemically changed as it travels,
(5) the amount of pollutant entering the navigable waters
relative to the amount of the pollutant that leaves the point
source, (6) the manner by or area in which the pollutant
enters the navigable waters, (7) the degree to which the pol-
lution (at that point) has maintained its specific identity.
Time and distance will be the most important factors in
most cases, but not necessarily every case.
Cite as: 590 U. S. ____ (2020) 17
Opinion of the Court
At the same time, courts can provide guidance through
decisions in individual cases. The Circuits have tried to do
so, often using general language somewhat similar to the
language we have used. And the traditional common-law
method, making decisions that provide examples that in
turn lead to ever more refined principles, is sometimes use-
ful, even in an era of statutes.
The underlying statutory objectives also provide guid-
ance. Decisions should not create serious risks either of un-
dermining state regulation of groundwater or of creating
loopholes that undermine the statute’s basic federal regu-
latory objectives.
EPA, too, can provide administrative guidance (within
statutory boundaries) in numerous ways, including
through, for example, grants of individual permits, promul-
gation of general permits, or the development of general
rules. Indeed, over the years, EPA and the States have of-
ten considered the Act’s application to discharges through
groundwater.
Both Maui and the Government object that to subject dis-
charges to navigable waters through groundwater to the
statute’s permitting requirements, as our interpretation
will sometimes do, would vastly expand the scope of the
statute, perhaps requiring permits for each of the 650,000
wells like petitioner’s or for each of the over 20 million sep-
tic systems used in many Americans’ homes. Brief for Pe-
titioner 44–48; Brief for United States as Amicus Curiae
24–25. Cf. Utility Air Regulatory Group v. EPA, 573 U.S.
302, 324 (2014).
But EPA has applied the permitting provision to some
(but not to all) discharges through groundwater for over 30
years. See supra, at 8–9. In that time we have seen no
evidence of unmanageable expansion. EPA and the States
also have tools to mitigate those harms, should they arise,
by (for example) developing general permits for recurring
situations or by issuing permits based on best practices
18 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
where appropriate. See, e.g., 40 CFR §122.44(k) (2019).
Judges, too, can mitigate any hardship or injustice when
they apply the statute’s penalty provision. That provision
vests courts with broad discretion to set a penalty that
takes account of many factors, including “any good-faith ef-
forts to comply” with the Act, the “seriousness of the viola-
tion,” the “economic impact of the penalty on the violator,”
and “such other matters as justice may require.” See 33
U.S. C. §1319(d). We expect that district judges will exer-
cise their discretion mindful, as we are, of the complexities
inherent to the context of indirect discharges through
groundwater, so as to calibrate the Act’s penalties when, for
example, a party could reasonably have thought that a per-
mit was not required.
In sum, we recognize that a more absolute position, such
as the means-of-delivery test or that of the Government or
that of the Ninth Circuit, may be easier to administer. But,
as we have said, those positions have consequences that are
inconsistent with major congressional objectives, as re-
vealed by the statute’s language, structure, and purposes.
We consequently understand the permitting requirement,
§301, as applicable to a discharge (from a point source) of
pollutants that reach navigable waters after traveling
through groundwater if that discharge is the functional
equivalent of a direct discharge from the point source into
navigable waters.
VI
Because the Ninth Circuit applied a different standard,
we vacate its judgment and remand the case for further pro-
ceedings consistent with this opinion.
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–260
_________________
COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII
WILDLIFE FUND, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2020]
JUSTICE KAVANAUGH, concurring.
I join the Court’s opinion in full. I write separately to
emphasize three points.
First, the Court’s interpretation of the Clean Water Act
regarding pollution “from” point sources adheres to the in-
terpretation set forth in Justice Scalia’s plurality opinion in
Rapanos v. United States, 547 U.S. 715 (2006). The Clean
Water Act requires a permit for “any addition of any pollu-
tant to navigable waters from any point source.” 33 U.S. C.
§1362(12)(A); see §§1311(a), 1342(a). The key word is
“from.” The question in this case is whether the County of
Maui needs a permit for its Lahaina Wastewater Reclama-
tion Facility. No one disputes that pollutants originated at
Maui’s wastewater facility (a point source), and no one dis-
putes that the pollutants ended up in the Pacific Ocean (a
navigable water). Maui contends, however, that it does not
need a permit. Maui says that the pollutants did not come
“from” the Lahaina facility because the pollutants traveled
through groundwater before reaching the ocean.
Justice Scalia’s plurality opinion in Rapanos explained
why Maui’s interpretation of the Clean Water Act is incor-
rect. In that case, Justice Scalia stated that polluters could
not “evade the permitting requirement of §1342(a) simply
by discharging their pollutants into noncovered intermit-
tent watercourses that lie upstream of covered waters.” 547
2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
KAVANAUGH, J., concurring
U. S., at 742–743. Justice Scalia reasoned that the Clean
Water Act does not merely “forbid the ‘addition of any pol-
lutant directly to navigable waters from any point source,’
but rather the ‘addition of any pollutant to navigable wa-
ters.’ Thus, from the time of the CWA’s enactment, lower
courts have held that the discharge into intermittent chan-
nels of any pollutant that naturally washes downstream
likely violates §1311(a), even if the pollutants discharged
from a point source do not emit ‘directly into’ covered wa-
ters, but pass ‘through conveyances’ in between.” Id., at 743
(citations omitted).
In other words, under Justice Scalia’s interpretation in
Rapanos, the fact that the pollutants from Maui’s
wastewater facility reach the ocean via an indirect route
does not itself exempt Maui’s facility from the Clean Water
Act’s permitting requirement for point sources. The Court
today adheres to Justice Scalia’s analysis in Rapanos on
that issue.
Second, as Justice Scalia’s opinion in Rapanos pointed
out and as the Court’s opinion today explains, the statute
does not establish a bright-line test regarding when a pol-
lutant may be considered to have come “from” a point
source. The source of the vagueness is Congress’ statutory
text, not the Court’s opinion. The Court’s opinion seeks to
translate the vague statutory text into more concrete
guidance.
Third, JUSTICE THOMAS’ dissent states that “the Court
does not commit” to “which factors are the most important”
in determining whether pollutants that enter navigable wa-
ters come “from” a point source. Post, at 5. That critique is
not accurate, as I read the Court’s opinion. The Court iden-
tifies relevant factors to consider and emphasizes that
“[t]ime and distance are obviously important.” Ante, at 15.
And the Court expressly adds that “[t]ime and distance will
be the most important factors in most cases, but not neces-
sarily every case.” Ante, at 16. Although the statutory text
Cite as: 590 U. S. ____ (2020) 3
KAVANAUGH, J., concurring
does not supply a bright-line test, the Court’s emphasis on
time and distance will help guide application of the statu-
tory standard going forward.
With those additional comments, I join the Court’s opin-
ion in full.
Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–260
_________________
COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII
WILDLIFE FUND, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2020]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting.
The Clean Water Act (CWA) requires a federal permit for
“the discharge of any pollutant by any person.” 33 U.S. C.
§1311(a); see §1342. The CWA defines a “discharge” as “any
addition of any pollutant to navigable waters from any
point source.” §1362(12).1 Based on the statutory text and
structure, I would hold that a permit is required only when
a point source discharges pollutants directly into navigable
waters. The Court adopts this interpretation in part, con-
cluding that a permit is required for “a direct discharge.”
Ante, at 15. But the Court then departs from the statutory
text by requiring a permit for “the functional equivalent of
a direct discharge,” ibid., which it defines through an open-
ended inquiry into congressional intent and practical con-
siderations. Because I would adhere to the text, I respect-
fully dissent.
——————
1 The CWA defines “navigable waters” as “the waters of the United
States, including the territorial seas.” §1362(7). It defines a “point
source” as “any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which pollutants are or may be dis-
charged,” excluding “agricultural stormwater discharges and return
flows from irrigated agriculture.” §1362(14).
2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
THOMAS, J., dissenting
I
A
In interpreting the statutory definition of “discharge,” the
Court focuses on the word “from,” but the most helpful word
is “addition.” That word, together with “to” and “from,”
limits the meaning of “discharge” to the augmentation of
navigable waters.
Dictionary definitions of “addition” denote an augmenta-
tion or increase. Webster’s Third New International Dic-
tionary defines “addition” as “the act or process of adding:
the joining or uniting of one thing to another.” Webster’s
Third New International Dictionary 24 (1961); see also ibid.
(listing “increase” and “augmentation” as synonyms for “ad-
dition”). Other dictionary definitions from around the time
of the statute’s enactment are in accord. See, e.g., American
Heritage Dictionary 14, 15 (1981) (defining “addition” as
“[t]he act or process of adding” and defining “add” as “[t]o
join or unite so as to increase in size, quantity, or scope”);
see also Webster’s New International Dictionary 29, 30 (2d
ed. 1957) (defining “addition” as the “[a]ct, process, or in-
stance of adding,” and defining “add” as to “join or unite, as
one thing to another, or as several particulars, so as to in-
crease the number, augment the quantity, enlarge the mag-
nitude, or so as to form into one aggregate”).
The inclusion of the term “addition” in the CWA indicates
that the statute excludes anything other than a direct dis-
charge. When a point source releases pollutants to ground-
water, one would naturally say that the groundwater has
been augmented with pollutants from the point source. If
the pollutants eventually reach navigable waters, one
would not naturally say that the navigable waters have
been augmented with pollutants from the point source. The
augmentation instead occurs with pollutants from the
groundwater.
The prepositions “from” and “to” reinforce this reading.
When pollutants are released from a point source to another
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., dissenting
point source or groundwater, they are added to the second
from the first. If the pollutants are later released to navi-
gable waters, they are added to the navigable waters from
the second point source or the groundwater. One would not
naturally say that the pollutants are added to the navigable
waters from the original point source.
Interpreting “discharge” to mean a direct discharge
makes sense of other parts of the definition as well. It re-
spects the statutory definition of a point source as a “con-
veyance,” see §1362(14), because a point source that re-
leases pollutants directly into navigable waters is a means
of conveyance. And it makes sense of the word “any” before
“point source,” because that term clarifies that any kind of
point source may require a permit.
The structure of the CWA confirms this interpretation. It
authorizes the Environmental Protection Agency (EPA) to
regulate discharges from point sources, including through
the permitting process, but it reserves to the States the pri-
mary responsibility for regulating other sources of pollu-
tion, including groundwater. With respect to these sources,
the EPA merely collects information, coordinates with the
States, and provides funding. See 33 U.S. C. §§1252(a),
1254(a)(5), 1282(b)(2), 1288, 1314(a), 1329; ante, at 6–7. In
the CWA, Congress expressly stated its “policy . . . to recog-
nize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution.”
§1251(b). Thus, construing the EPA’s power to regulate
point sources to allow the agency to regulate nonpoint
sources and groundwater is in serious tension with Con-
gress’ design.
My reading is also consistent with our decision in South
Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S.
95 (2004). The petitioner in that case argued that no permit
was required when a point source was not the original
source of the pollutant but instead conveyed the pollutant
from further up a chain of sources. Id., at 104. We rejected
4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
THOMAS, J., dissenting
that argument because “a point source need not be the orig-
inal source of the pollutant; it need only convey the pollu-
tant to ‘navigable waters.’ ” Id., at 105. Although that case
did not involve the exact question presented here, the
direct-discharge interpretation comports well with that
previous decision.
B
The Court’s main textual argument reads the word
“from” in isolation. But as the Court recognizes, “the word
‘from’ necessarily draws its meaning from context.” Ante,
at 9–10. The Court’s example using “arrive” instead of “ad-
dition” is thus unpersuasive, ante, at 13–14, because “from”
takes different meanings with different verbs. The Court’s
culinary example also misses the mark, ante, at 14, because
if the drippings from the meat collect in the pan before the
chef adds them to the gravy, the drippings are added to the
gravy from the pan, not from the meat. This point becomes
clear if we reorder the majority’s recipe to match the stat-
ute; the chef has not added the drippings to the gravy from
the meat. The Court’s bathwater example, ante, at 14, suf-
fers from the same problem; if the well water is put in a
bucket before it is put in the bathtub, it is added to the bath-
tub from the bucket. Only by reading the phrase in its en-
tirety can we interpret the definition of “discharge.” See
Deal v. United States, 508 U.S. 129, 132 (1993).
The Court also asserts that a narrower reading than the
one it adopts would create a “massive loophole” in the stat-
ute. Ante, at 15. Far from creating a loophole, my reading
is the most logical because it is consonant with the scope of
Congress’ power. The CWA presumably was passed as an
exercise of Congress’ authority “to regulate Commerce with
foreign Nations, and among the several States, and with
the Indian Tribes.” U. S. Const., Art. I, §8, cl. 3. My inter-
pretation ties the statute more closely to navigable waters,
on the theory that they are at least a channel of these kinds
Cite as: 590 U. S. ____ (2020) 5
THOMAS, J., dissenting
of commerce.
Further, the Court’s interpretation creates practical
problems of its own. As the Court acknowledges, its opinion
gives almost no guidance, save for a list of seven factors.
But the Court does not commit to whether those factors are
the only relevant ones, whether those factors are always
relevant, or which factors are the most important. See ante,
at 15–16. It ultimately does little to explain how function-
ally equivalent an indirect discharge must be to require a
permit.2
The Court suggests that the EPA could clarify matters
through “administrative guidance,” ante, at 17, but so far
the EPA has provided only limited advice and recently
shifted its position, see 84 Fed. Reg. 16810 (2019); ante, at
11–12. In any event, the sort of “ ‘general rules’ ” that the
Court hopes the EPA will promulgate are constitutionally
suspect. See Department of Transportation v. Association
of American Railroads, 575 U.S. 43, 67–87 (2015)
(THOMAS, J., concurring in judgment).
Despite giving minimal guidance as to how this case
should be decided on remand, the majority speculates about
whether a permit would be required in other factual circum-
——————
2 JUSTICE KAVANAUGH believes that the Court’s opinion provides
enough guidance when it states that “[t]ime and distance will be the most
important factors in most cases, but not necessarily every case,” ante, at
16 (majority opinion) (emphasis added). See ante, at 2 (concurring opin-
ion). His hope for guidance appears misplaced. For all we know, these
factors may not be the most important in 49 percent of cases. The ma-
jority’s nonexhaustive seven-factor test “may aid in identifying relevant
facts for analysis, but—like most multifactor tests—it leaves courts
adrift once those facts have been identified.” Dietz v. Bouldin, 579 U. S.
___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 3); see also Scalia,
The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1186–1187
(1989) (noting that “when balancing is the mode of analysis, not much
general guidance may be drawn from the opinion” and arguing that “to-
tality of the circumstances tests and balancing modes of analysis” should
“be avoided where possible”).
6 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
THOMAS, J., dissenting
stances. It poses the examples of a pipe that releases pol-
lutants over navigable waters and a pipe that releases pol-
lutants onto land near navigable waters. As an initial mat-
ter, I am not as sure as the majority that a “pollutant,” as
defined by the CWA, may be added to the air.3 Even if the
majority is correct that a permit is not required in these
hypothetical cases, drawing the line at discharges to water
is not so absurd as to undermine the most natural reading
of the statute. In any event, it is unnecessary to decide
these hypothetical cases today.
Finally, the Court speculates as to “those circumstances
in which Congress intended to require a federal permit.”
Ante, at 15. But we are not a superlegislature (or super-
EPA) tasked with making good policy—assuming that is
even what the Court accomplishes today. “Our job is to fol-
low the text even if doing so will supposedly undercut a
basic objective of the statute.” Baker Botts L. L. P. v.
ASARCO LLC, 576 U.S. 121, 135 (2015) (internal quota-
tion marks omitted).
II
I do agree with the Court on several points. First, the
interpretation adopted by respondents and the Ninth Cir-
cuit is unsupportable. That interpretation—which would
require permits for discharges that are “ ‘fairly traceable’ ”
to, and proximately caused by, a point source—is atextual
and unsettles the CWA’s careful balance between federal
regulation of point-source pollution and state regulation of
nonpoint-source pollution. Ante, at 5–9.
——————
3 The CWA defines a “pollutant” as “dredged spoil, solid waste, incin-
erator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or dis-
carded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water,” with certain exceptions.
§1362(6).
Cite as: 590 U. S. ____ (2020) 7
THOMAS, J., dissenting
Second, I agree that the interpretation adopted by peti-
tioner and JUSTICE ALITO reads the word “any” unnatu-
rally, ante, at 11, although the majority appears to deploy
that argument itself in another part of the opinion, ante, at
14. Petitioner’s and JUSTICE ALITO’s interpretation also
gives insufficient weight to the meaning of “addition,” see
supra, at 2.
Third, I agree that the EPA’s interpretation is not enti-
tled to deference for at least two reasons: No party requests
it, and the EPA’s reading is not the best one. Ante, at 12–
13. I add only that deference under Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), likely conflicts with the Vesting Clauses of the Con-
stitution. See Baldwin v. United States, 589 U. S. ___, ___–
___ (2020) (THOMAS, J., dissenting from denial of certiorari)
(slip op., at 2–8); Michigan v. EPA, 576 U.S. 743, 761–764
(2015) (THOMAS, J., concurring); see also Perez v. Mortgage
Bankers Assn., 575 U.S. 92, 115–126 (2015) (THOMAS, J.,
concurring in judgment).
Finally, I agree with the Court’s implicit conclusion that
Rapanos v. United States, 547 U.S. 715 (2006), does not re-
solve this case. That plurality opinion, which I joined, ob-
served that lower courts have required a permit when pol-
lutants pass through a chain of point sources. Id., at 743–
744. But we expressly said in Rapanos that “we [did] not
decide this issue.” Id., at 743. We are not bound by dictum
in a plurality opinion or by the lower court opinions it cited.
III
The best reading of the statute is that a “discharge” is the
release of pollutants directly from a point source to naviga-
ble waters. The application of this interpretation to the un-
disputed facts of this case makes a remand unnecessary.
Petitioner operates a wastewater treatment facility and in-
jects treated wastewater into four underground injection
control wells. All parties agree that the wastewater enters
8 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
THOMAS, J., dissenting
groundwater from the wells and does not directly enter nav-
igable waters. Based on these undisputed facts, there is no
“discharge,” so I would reverse the judgment of the Ninth
Circuit. I respectfully dissent.
Cite as: 590 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–260
_________________
COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII
WILDLIFE FUND, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 23, 2020]
JUSTICE ALITO, dissenting.
If the Court is going to devise its own legal rules, instead
of interpreting those enacted by Congress, it might at
least adopt rules that can be applied with a modicum of
consistency. Here, however, the Court makes up a rule
that provides no clear guidance and invites arbitrary and
inconsistent application.
The text of the Clean Water Act generally requires a per-
mit when a discharge “from” a “point source” (such as a
pipe) “add[s]” a pollutant “to” navigable waters (such as the
Pacific Ocean). 33 U.S. C. §1362(12). There are two ways
to read this text. A pollutant that reaches the ocean could
be understood to have been added “from” a pipe if the
pipe originally discharged the pollutant and the pollutant
eventually made its way to the ocean by flowing over or un-
der the surface of the ground. Or a pollutant that reaches
the ocean could be understood to have come “from” a pipe if
the pollutant is discharged from the pipe directly into the
ocean.
There is no comprehensible alternative to these two
interpretations, but the Court refuses to accept either.
Both alternatives, it believes, lead to unacceptable results,
and it therefore tries to find a middle way. It holds that a
permit is required “when there is a direct discharge from a
point source into navigable waters or when there is the
2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
functional equivalent of a direct discharge.” Ante, at 15.
This is not a plausible interpretation of the statutory text
and, to make matters worse, the Court’s test has no clear
meaning.
Just what is the “functional equivalent” of a “direct dis-
charge”? The Court provides no real answer. All it will say
is that the distance a pollutant travels and the time this
trip entails are the most important factors, but at least five
other factors may have a bearing on the question, and even
this list is not exhaustive. Ante, at 16. Entities like water
treatment authorities that need to know whether they must
get a permit are left to guess how this nebulous standard
will be applied. Regulators are given the discretion, at least
in the first instance, to make of this standard what they
will. And the lower courts? The Court’s advice, in essence,
is: “That’s your problem. Muddle through as best you can.”
I
Petitioner, the County of Maui (County), built the
Lahaina Wastewater Reclamation Facility in the 1970s.
Excerpts of Record 304. The facility receives sewage and
then discharges treated wastewater into wells (essentially
long pipes) that extend 200 feet or more below ground level.
Id., at 694–695. Some of this discharge enters an aquifer
below the facility. Id., at 696.
In all the years of its operation, the facility has never had
a National Pollution Discharge Elimination System
(NPDES) permit for discharges from the wells, a fact that
has been well known to both the EPA and the Hawaii De-
partment of Health (HDOH). The EPA helped to finance
the construction of the facility with a Clean Water Act
grant. Id., at 141. In 1973, before breaking ground on the
facility, the County prepared an environmental impact re-
port and shared it with the EPA and the HDOH. Id., at
140, 342. The report predicted that effluent injected into
groundwater from the wells would “eventually reach the
Cite as: 590 U. S. ____ (2020) 3
ALITO, J., dissenting
ocean some distance from the shore.” Id., at 342. Both the
EPA and the HDOH received and submitted comments on
the report without any mention of a need for permitting dis-
charges from the wells. Id., at 140. Six years later, the
HDOH issued an NPDES permit to the facility—but not for
the wells. (The permit covered separate discharges to the
Honokowai Stream.) Id., at 141, 223–224. And in a May
1985 NPDES Compliance Monitoring Report, the EPA con-
cluded that the County was operating in compliance with
the permit, because all effluent was entering the injection
wells—and was thus destined for groundwater rather than
for navigable waters or for use in irrigation. Id., at 141,
222. In 1994, HDOH again informed the EPA that “all ex-
perts agree that the wastewater does enter the ocean.” Id.,
at 369. And again—nothing from the federal authorities.
Thus, despite nearly five decades of notice that effluent
from the facility would make, or was making, its way via
groundwater to the ocean, neither the EPA nor the HDOH
required NPDES permitting for the Lahaina wells. App. to
Pet. for Cert. 138, 143. Indeed, none of the more than 6,600
underground injection wells in Hawaii currently has an
NPDES permit.1
In 2012, however, as the Court recounts, respondents
filed a citizen suit claiming that the Lahaina facility was
violating the Clean Water Act by discharging pollutants
into the ocean without a permit. The District Court granted
summary judgment against the County on the issue of lia-
bility because pollutants “can be directly traced from the
injection wells to the ocean.” 24 F. Supp. 3d 980, 998 (Haw.
2014) (emphasis deleted).
The parties then entered into a conditional settlement
——————
1 EPA, FY 2018 State Underground Injection Control Inventory,
https://www.epa.gov/uic/uic-injection-well-inventory; EPA, Hawaii
NPDES Permits: Draft and Final NPDES Permits, https://
www.epa.gov/npdes-permits/hawaii-npdes-permits.
4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
that would take effect if the County were unsuccessful on
appeal. Under that agreement, the County must: make
good-faith efforts to obtain and comply with an NPDES per-
mit; pay $100,000 in civil penalties; spend $2.5 million on a
“supplemental environmental project” in the western part
of the island of Maui; and pay nearly $1 million for respond-
ents’ attorney’s fees and other costs of litigation.2
On appeal, the Ninth Circuit affirmed on the ground that
pollutants that eventually reached the ocean were “fairly
traceable” to the wells. 886 F.3d 737, 749 (2018). We
granted review and must now decide whether the Court of
Appeals erred in holding that the discharge of effluent from
the wells into groundwater requires a permit.
II
The Clean Water Act generally makes it unlawful to “dis-
charge” a “pollutant”3 without a permit. 33 U.S. C.
§1311(a). The Act defines the “discharge of a pollutant” as
“any addition of any pollutant to navigable waters[4 ] from
any point source.” §1362(12). And a “point source” is
broadly defined as “any discernible, confined and discrete
——————
2 Settlement Agreement and Order re: Remedies in No. 1:12cv198, Doc.
259 (Haw.); Stipulated Settlement Agreement Regarding Award of
Plaintiffs’ Costs of Litigation, ibid., Doc. 267 (Haw.).
3 The Act defines a “pollutant” as:
“dredged spoil, solid waste, incinerator residue, sewage, garbage, sew-
age sludge, munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste discharged into water
. . . .” §1362(6).
4 The Act defines “navigable waters” as “waters of the United States,
including the territorial seas.” §1362(7). The term “navigable waters”
has a well-known meaning, but the broader term “waters of the United
States” is not defined by the Clean Water Act and has presented a diffi-
cult issue for this Court. See Rapanos v. United States, 547 U.S. 715
(2006). The EPA’s definition of “waters of the United States” expressly
excludes groundwater, see 40 CFR §122.2 (2019); 84 Fed. Reg. 4190
(2019), and no party in this case disputes that interpretation.
Cite as: 590 U. S. ____ (2020) 5
ALITO, J., dissenting
conveyance . . . from which pollutants are or may be dis-
charged.” §1362(14). The Act includes a non-exhaustive
list of conveyances that fall within this definition, and in-
cluded on that list are such things as “pipe[s],” “ditch[es],”
“channel[s],” and “well[s].” Ibid.
Putting all these statutory terms together, the rule can
be stated as follows: A permit is required when a pollutant
is “add[ed]” to navigable waters “from” a “point source.” In
this case, the parties and the EPA agree that most of
the elements of this rule are met. Specifically, they agree
that: The effluent emitted by the wells is a “pollutant”; this
effluent reaches navigable waters (the Pacific Ocean); and
the wells are “point source[s].” The disputed question is
whether the emission of effluent from those wells qualifies
as a “discharge,” that is, the addition of a pollutant “from”
a point source. §1362(12) (emphasis added).
There are two possible interpretations of this phrase.
The first is that pollutants are added to navigable waters
from a point source whenever they originally came from the
point source. The second is that pollutants are added to
navigable waters only if they were discharged from a point
source directly into navigable waters.
Dissatisfied with those options, the Court tries to find a
third, but its interpretation is very hard to fit into the stat-
utory text. Under the Court’s interpretation, it appears
that a pollutant that leaves a point source and heads to-
ward navigable waters via some non-point source (such as
by flowing over the ground or by means of groundwater) is
“from” the point source for some portion of its journey, but
once it has travelled a certain distance or once a certain
amount of time has elapsed, it is no longer “from” the point
source and is instead “from” a non-point source.
This is an implausible reading of the statute. The Court
has many inventive examples of the different meanings
that can be conveyed by the simple statement that A comes
from B, but one of the Court’s examples—the traveler who
6 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
flies from Europe to Baltimore—illustrates the problem. If
we apply the Court’s interpretation of §1362 to this trav-
eler’s journey, he would be “from” Europe for the first part
of the flight, but at some point he might cease to be “from”
Europe and would then be from someplace else, maybe
Greenland or geographical coordinates in the middle of the
Atlantic. This is a very strange notion, and therefore, I
think the statutory text compels us to choose between the
two alternatives set out above.
The Court rejects both of these because it thinks they lead
to unacceptably extreme results. “Originally from” would
impose liability even if pollutants discharged into ground
water had to travel 250 miles over the course of 100 years
before reaching navigable waters. See ante, at 6. And “ ‘im-
mediately’ ” or “ ‘directly’ from,” the Court thinks, would
mean that a polluter could evade the permit requirement
by discharging pollutants from a pipe located just a few feet
from navigable waters. Ante, at 14–15.
To escape these possibilities, the Court devises its own
test: A permit is required, the Court holds, “when there is a
direct discharge from a point source into navigable waters
or when there is the functional equivalent of a direct dis-
charge.” Ante, at 15 (emphasis in original). The Clean Wa-
ter Act, however, says nothing about “the functional equiv-
alent” of a direct discharge. That is the Court’s own
concoction, and the Court provides no clear explanation of
its meaning.
The term “functional equivalent” may have a quasi-
technical ring, but what does it mean? “Equivalent” means
“equal” in some respect, and “functional” signifies a rela-
tionship to a function. The function of a direct discharge
from a point source into navigable waters is to convey the
entirety of the discharge into navigable waters without any
delay. Therefore, the “functional equivalent” of a direct dis-
charge of a pollutant into navigable waters would seem to
be a discharge that is equal to a direct discharge in these
Cite as: 590 U. S. ____ (2020) 7
ALITO, J., dissenting
respects.
If that is what the Court meant by “the functional equiv-
alent of a direct discharge,” the test would apply at best to
only a small set of situations not involving a direct dis-
charge. The Court’s example of a pipe that emits pollutants
a few feet from the ocean would presumably qualify on de
minimis grounds, but if the pipe were moved back any
significant distance, the discharge would not be exactly
equal to a direct discharge. There would be some lag from
the time of the discharge to the time when the pollutant
reaches navigable waters; some of the pollutant might not
reach that destination; and the pollutant might have
changed somewhat in composition by the time it reached
the navigable waters.
For these reasons, the Court’s reference to “the functional
equivalent of a direct discharge,” if taken literally, would be
of little importance, but the Court’s understanding of this
concept is very different from the literal meaning of the
phrase. As used by the Court, “the functional equivalent of
a direct discharge” means a discharge that is sufficiently
similar to a direct discharge to warrant a permit in light of
the Clean Water Act’s “language, structure, and purposes.”
See ante, at 18. But what, in concrete terms, does this
mean? How similar is sufficiently similar?
The Court provides this guidance. It explains that time
and distance are the most important factors, ante, at 16, but
it does not set any time or distance limits except to observe
that a permit is needed where the discharge is a few feet
away from navigable waters and that a permit is not re-
quired where the discharge is far away and it takes “many
years” for the pollutants to complete the journey. Ante, at
15–16. Beyond this, the Court provides a list (and a non-
exhaustive one at that!) of five other factors that may be
relevant: “the nature of the material through which the pol-
lutant travels,” “the extent to which the pollutant is diluted
8 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
or chemically changed as it travels,” “the amount of pollu-
tant entering the navigable waters relative to the amount
of the pollutant that leaves the point source,” “the manner
by or area in which the pollutant enters the navigable wa-
ters,” and “the degree to which the pollution (at that point)
has maintained its specific identity.” Ante, at 16.
The Court admits that its rule “does not, on its own,
clearly explain how to deal with middle instances,” ibid.,
but that admission does not go far enough. How the rule
applies to “middle instances” is anybody’s guess. Except in
extreme cases, dischargers will be able to argue that the
Court’s multifactor test does not require a permit. Oppo-
nents will be able to make the opposite argument. Regula-
tors will be able to justify whatever result they prefer in a
particular case. And judges will be left at sea.
III
A
Instead of concocting our own rule, I would interpret the
words of the statute, and in my view, the better of the two
possible interpretations is that a permit is required when a
pollutant is discharged directly from a point source to nav-
igable waters. This interpretation is consistent with the
statutory language and better fits the overall scheme of the
Clean Water Act. And properly understood, it does not have
the sort of extreme consequences that the Court finds
unacceptable.
Take the Court’s example of a pipe that discharges pollu-
tants a short distance from the ocean. Ante, at 10. This
pipe qualifies as a point source. 33 U.S. C. §1362(14). If
its discharge goes directly into another point source and
that point source discharges directly into navigable waters,
there is a direct discharge into navigable waters, and a per-
mit is needed. See Rapanos v. United States, 547 U.S. 715,
Cite as: 590 U. S. ____ (2020) 9
ALITO, J., dissenting
743–744 (2006) (plurality opinion).5
——————
5 JUSTICE THOMAS describes his preferred holding in similar terms: “[A]
permit is required only when a point source discharges pollutants di-
rectly into navigable waters.” Ante, at 1 (dissenting opinion). But I take
JUSTICE THOMAS’s opinion to foreclose liability in one situation where I
believe a permit would be required: a discharge from multiple, linked
point sources. In my view, a permit is required in that instance because
a pollutant would ultimately be added to navigable waters directly from
a point source.
Justice Scalia’s opinion in Rapanos, 547 U.S., at 743–744 (plurality
opinion), supports this conclusion. Rapanos addressed the meaning of
the term “waters of the United States,” and Justice Scalia’s opinion con-
cluded that this term does not apply to “[w]etlands with only an inter-
mittent, physically remote hydrologic connection to [such waters].” Id.,
at 742. At one point in his opinion, Justice Scalia responded to the argu-
ment that this interpretation would allow polluters to evade the permit
requirement “simply by discharging their pollutants into noncovered in-
termittent watercourses that lie upstream of covered waters.” Id., at
743. Arguing that this was not likely to occur, he identified two lines of
lower court authority that would prevent such evasion, but he did not
endorse either. Ibid.
One of these lines was based on exactly the interpretation set out in
this opinion, namely, that “such upstream, intermittently flowing chan-
nels themselves constitute ‘point sources’ ” under the Act’s broad defini-
tion of that term. Ibid. The other line, as described in Justice Scalia’s
opinion, “held that the discharge into intermittent channels of any pol-
lutant that naturally washes downstream likely [requires a permit] even
if the pollutants discharged from a point source do not emit ‘directly into’
covered waters, but pass ‘through conveyances’ in between.” Ibid. (em-
phasis in original). To the extent these lower court cases are understood
as holding that a permit is required whenever a pollutant “naturally”
reaches waters of the United States, their reasoning would conflict with
the Court’s rejection of the theory that a permit is required whenever a
pollutant that originated from a point source ultimately reaches covered
waters. But as Justice Scalia noted, in the two cases he cited, the pollu-
tants were discharged from point sources into “conveyances” that, in
turn, brought the pollutants to covered waters. Ibid. And the convey-
ances in both cases, a sewer system and tunnel, ibid., could easily fall
within the broad definition of a point source.
In short, at least one and perhaps both of the lines of lower court cases
to which Justice Scalia referred are fully consistent with the interpreta-
tion set out in this opinion. The same is true of his statement, discussed
by JUSTICE KAVANAUGH, ante, at 1–2 (concurring opinion), that the Clean
10 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
That a permit is required in this situation is important
because the Clean Water Act’s definition of a “point source”
is very broad, and as a result, many discharges onto the
surface of land are likely to be covered. As noted, “point
source[s]” include “ditch[es]” and “channel[s],” as well as
“any discernible, confined and discrete conveyance . . . from
which pollutants . . . may be discharged.” §1362(14).
Therefore if water discharged on the surface of the land
finds or creates a passage leading to navigable waters, a
permit may be required if the course that the discharge
takes is (1) a “conveyance” that is (2) “discernible” and (3)
“confined.”
Those three requirements are rather easily satisfied.
When a liquid flows over the surface of land to navigable
waters, the surface is a conveyance, i.e., a “means of carry-
ing or transporting something” from one place to another.
Webster’s Third New International Dictionary 499 (1971)
(Webster’s Third); Random House Dictionary of the English
Language 320 (1967) (Random House).6 This conveyance
would be “discernible,” i.e., capable of being seen. Webster’s
Third 644; Random House 409. And it would be “confined,”
——————
Water Act “does not forbid the ‘addition of any pollutant directly to nav-
igable waters from any point source.’ ” 547 U.S., at 743. As noted, Jus-
tice Scalia’s opinion is open to the possibility that a permit is required if
point source A discharges into point source B, and point source B then
discharges into covered waters. Thus, his opinion apparently regards
that situation as involving an indirect discharge. I would describe that
discharge as direct because point source B discharges directly into cov-
ered waters, but the difference is purely semantic.
6 As we have said, the Act’s point-source “definition makes plain that a
point source need not be the original source of the pollutant; it need only
convey the pollutant to ‘navigable waters,’ which are, in turn, defined as
‘the waters of the United States.’ ” South Fla. Water Management Dist.
v. Miccosukee Tribe, 541 U.S. 95, 105 (2004). The label is a bit of a mis-
nomer: Although labeled “point sources,” “[t]ellingly, the examples . . .
listed by the Act include pipes, ditches, tunnels, and conduits, objects
that do not themselves generate pollutants but merely transport them.”
Ibid. (citing §1362(14)).
Cite as: 590 U. S. ____ (2020) 11
ALITO, J., dissenting
i.e., held within bounds, see Webster’s Third 476; Random
House 308, if the topography of the land in question im-
poses some boundaries on its flow.
If the term “point source” is read in this way, it would
have a broad reach and would cover many of the cases that
trouble the Court. Moreover—and I find this point partic-
ularly important—even if this interpretation fails to cap-
ture every case that seems to call out for regulation, that
would not mean that these cases would necessarily remain
unchecked. The States have the authority to regulate the
discharge of pollutants by non-point sources. See 33
U.S. C. §§1285(j), 1314(f ), 1329(i), 1329(b)(1), (h). They are
entrusted with a vital role under the Clean Water Act, and
there is no reason to believe that they would tolerate cases
of abuse.
The interpretation I have outlined is not only consistent
with the statutory language; it is strongly supported by the
Clean Water Act’s regulatory scheme for at least two rea-
sons. First, it respects Congress’ decision to treat point-
source pollution differently from non-point-source pollu-
tion, including pollution conveyed by groundwater. See 84
Fed. Reg. 16832.7 The Court itself recognizes this:
“[T]he structure of the statute indicates that, as to
groundwater pollution and non[-]point source pollu-
tion, Congress intended to leave substantial responsi-
bility and autonomy to the States.” Ante, at 6.
“Over many decades, and with federal encouragement,
——————
7 The Act contains a number of references to groundwater (a non-point
source) outside the NPDES context. The Act textually distinguishes
groundwater from surface water and navigable waters, §1252(a), pro-
vides funding for state regulation of groundwater pollution, and suggests
that groundwater is a non-point source. See §1329(h)(5)(D) (authorizing
EPA to prioritize grants to States that have implemented or proposed
“carry[ing] out groundwater quality protection activities which [EPA] de-
termines are part of a comprehensive non[-]point source pollution control
program”).
12 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
the States have developed methods of regulating non-
point source pollution through water quality stand-
ards, and otherwise.” Ibid.
“The Act envisions EPA’s role in managing non[-]point
source pollution and groundwater pollution as limited
to studying the issue, sharing information with and
collecting information from the States, and issuing
monetary grants.” Ante, at 7.
Point sources are readily identifiable and therefore more
susceptible to uniform nationwide regulation. Non-point
source pollution, on the other hand, often presents more
complicated issues that are better suited to individualized
local solutions. See Shanty Town Assns. L. P. v. EPA, 843
F.2d 782, 791 (CA4 1988) (“[T]he control of non[-]point
source pollution was so dependent on such site-specific fac-
tors as topography, soil structure, rainfall, vegetation, and
land use that its uniform federal regulation was virtually
impossible”); Natural Resources Defense Council v. EPA,
915 F.2d 1314, 1316 (CA9 1990) (“The Act focused on point
source polluters presumably because they could be
identified and regulated more easily than non[-]point
source polluters”); Brief for State of West Virginia et al. as
Amici Curiae 14–18.
Second, this bright-line rule is consistent with the Act’s
remedial scheme. The Clean Water Act imposes a regime
of strict liability, §§1311, 1342, 1344, backed by criminal
penalties and steep civil fines, §1319. Thus, “the conse-
quences to landowners even for inadvertent violations can
be crushing.” Army Corps of Engineers v. Hawkes Co., 578
U. S. ___, ___ (2016) (Kennedy, J., concurring) (slip op., at
1). The Act authorizes as much as $54,833 in fines per day
(or more than $20 million per year), 40 CFR §19.4; 84 Fed.
Reg. 2059, and contains a 5-year statute of limitations, 28
U.S. C. §2462. And the availability of citizen suits only ex-
acerbates the danger to ordinary landowners. Even when
Cite as: 590 U. S. ____ (2020) 13
ALITO, J., dissenting
the EPA and the relevant state agency conclude that a per-
mit is not needed, there is always the possibility that a cit-
izen suit will result in a very costly judgment. The inter-
pretation set out above, by providing a relatively
straightforward rule, provides a measure of fair notice and
promotes good-faith compliance.
B
The alternative way in which the statutory language
could be interpreted—reading “from” to mean “originally
from”—would lead to extreme results, as the Court recog-
nizes. And while state regulation could fill any unwar-
ranted gaps left by the interpretation I have outlined, there
would be no apparent remedy for the overreach that would
result from interpreting “from” to mean “originally from.”
The extreme consequences of that interpretation are
shown most dramatically by its potential application to or-
dinary homeowners with septic tanks, a problem that the
EPA highlighted in a recent Interpretive Statement. See
Interpretive Statement on Application of the Clean Water
Act NPDES Program to Releases of Pollutants From a Point
Source to Groundwater, 84 Fed. Reg. 16824 (2019). Septic
systems—used by 26 million American homes—generally
operate by “discharging liquid effluent into perforated pipes
buried in a leach field, chambers, or other special units de-
signed to slowly release the effluent into the soil.” Id., at
16812. That effluent then percolates through the soil and
“can in certain circumstances ultimately enter groundwa-
ter.” Ibid.8 Congress most certainly did not intend that or-
dinary homeowners with septic systems obtain NPDES
——————
8 According to the EPA, numerous other conveyances that deposit pol-
lutants into groundwater could now require NPDES permits. “Activities
listed by commentators included aquifer recharge, leaks from sewage col-
lection systems, . . . treatment systems such as constructed wetlands,
spills and accidental releases, manure management, and coal ash
impoundment seepage.” 84 Fed. Reg. 16812. The County and amici
14 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
permits—or that they face severe penalties for failing to do
so. That, however, is where this alternative interpretation
would lead.
And the same is true for the test adopted by the Ninth
Circuit. The Ninth Circuit held that a permit is required if
a pollutant that reaches navigable waters is “fairly trace-
able,” but there is no real difference between “fairly trace-
able” and “originally from.” Unless a pollutant is “traceable”
to a point source, how could that point source be required
to get a permit? And the addition of the qualifier “fairly”
does not seem to add anything. What would it mean for a
pollutant to be “unfairly traceable” to a point source?
Traceable only as a result of a method that is scientifically
unsound? In that situation, why would a court consider the
pollutant to be traceable to the source in question at all? So
if a pollutant can be reliably determined to have originally
come from a point source, a permit would appear to be re-
quired under the Ninth Circuit’s test.
Respondents, instead of defending the Ninth Circuit’s
interpretation, argue that a discharge from a point source
must be the “proximate cause” of a pollutant’s reaching
navigable waters. Brief for Respondents 12. But as the
Court concludes, ante, at 6, there is no basis for transplant-
ing this concept from the law of torts into the Clean Water
Act, and it is unclear what it would mean in that context.
For these reasons, of the two possible interpretations of
the statutory terms, the better is the interpretation that
reads “from” to mean “directly from.”
C
Even if the Court were to find §1362(12) ambiguous, ap-
plicable clear statement rules foreclose the “functional
——————
also assert that respondents’ theory would require permits for green in-
frastructure, water reuse, and groundwater discharge. See, e.g., Brief
for National Association of Clean Water Agencies et al. as Amici Curiae
20–26.
Cite as: 590 U. S. ____ (2020) 15
ALITO, J., dissenting
equivalent” standard and favor the test just described. The
Court has required a clear statement of congressional in-
tent when an administrative agency seeks to interpret a
statute in a way that entails “a significant impingement of
the States’ traditional and primary power over land and wa-
ter use,” Solid Waste Agency of Northern Cook Cty. v. Army
Corps of Engineers, 531 U.S. 159, 174 (2001) (SWANCC ),
and when it adopts a new and expanded interpretation of a
statute, Utility Air Regulatory Group v. EPA, 573 U.S. 302
(2014) (UARG). The same rules should apply here where
what is at issue is a new theory propounded by private
plaintiffs.
First, the Court’s “functional equivalent” test unques-
tionably impinges on the States’ traditional authority. In
SWANCC, the Court struck down the Army Corps of Engi-
neers’ “Migratory Bird Rule” as inconsistent with the Clean
Water Act because the rule effectively displaced state au-
thority over land and water use. In this case, the federalism
interest is even stronger because the Clean Water Act itself
assigns non-point-source-pollution regulation to the States
and explicitly recognizes and protects the state role in envi-
ronmental protection. 33 U.S. C. §1251(b). The “functional
equivalent” standard expands federal point source regula-
tion at the expense of state non-point source regulation.
And as a practical matter, States would be saddled with the
costs of increased NPDES permitting (because States gen-
erally award permits in place of the EPA), while exercising
diminished control over non-point source pollution within
their territory. See Brief for State of West Virginia et al. as
Amici Curiae 27–34.
Second, the Court’s test offends the clear-statement rule
recognized in UARG by expanding the authority of the
EPA. Congress must speak clearly if it “wishes to assign to
an agency decisions of vast ‘economic and political signifi-
cance.’ ” 573 U.S., at 324 (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). In
16 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
UARG, the EPA had promulgated greenhouse-gas emission
standards for stationary sources that “constitute[d] an ‘un-
precedented expansion of EPA authority that would have a
profound effect on virtually every sector of the economy and
touch every household in the land.’ ” 573 U.S., at 310–311
(quoting 73 Fed. Reg. 44355 (2008)). The statutory scheme,
designed for large stationary sources like factories, would
have been extended to smaller sources like hotels and retail
establishments. The number of permits (and associated ex-
penses) would have skyrocketed.
Here, as the EPA explained in a recent Interpretive
Statement, the Fourth and Ninth Circuit “discharge”
tests—which I struggle to distinguish from the “functional
equivalent” formulation—broaden the Act’s coverage to
“potentially swee[p] into the scope of the statute common-
place and ubiquitous activities such as releases from home-
owners’ backyard septic systems.” 84 Fed. Reg. 16823.
IV
The Court does little to justify its newfound standard,
other than to point to certain past EPA enforcement ac-
tions, see ante, at 8–9, 17, but the EPA’s position on the
regulation of groundwater has been anything but con-
sistent. It is true, as the Court recounts, that the EPA has
required NPDES permits for the discharge of some pollu-
tants that migrate through groundwater before reaching
navigable waters. See ante, at 8–9. But the EPA has
contradicted itself on this important question multiple
times. See Brief for Edison Electric Institute et al. as Amici
Curiae 21–32 (reviewing EPA NPDES interpretations and
permitting practices).
In the Act’s earliest years, the EPA deputy general coun-
sel wrote in a formal memorandum that “[d]ischarges into
ground waters” do not require NPDES permits. Memoran-
dum to EPA Region IX Regional Counsel 2–3 (Dec. 13,
Cite as: 590 U. S. ____ (2020) 17
ALITO, J., dissenting
1973).9 More recently, the EPA recognized “conflicting legal
precedents” on this question. Compare NPDES Permit
Regulation and Effluent Limitation Guidelines and Stand-
ards for Concentrated Animal Feeding Operations
(CAFOs), 68 Fed. Reg. 7216 (2003), with 66 Fed. Reg. 3018
(2001).
Similarly, in its 2019 Interpretive Statement, the EPA
acknowledged its “[l]ack of consistent and comprehensive
direction” on this issue. See 84 Fed. Reg. 16820; see also
Brief for Edison Electric Institute et al. as Amici Curiae 21–
32 (recounting EPA historical approach to NPDES permit-
ting). But it added that “the best, if not the only, reading of
the [Act] is that all releases to groundwater are excluded
from the scope of the NPDES program, even where pollu-
tants are conveyed to jurisdictional surface waters via
groundwater.” 84 Fed. Reg. 16814.
In short, the EPA’s inconsistent position on the ground-
water issue does not provide a sufficient basis for the
Court’s new “functional equivalent” test.
* * *
The Court adopts a nebulous standard, enumerates a
non-exhaustive list of potentially relevant factors, and
washes its hands of the problem. We should not require
regulated parties to “feel their way on a case-by-case basis”
where the costs of uncertainty are so great. Rapanos, 547
U.S., at 758 (ROBERTS, C. J., concurring). The Court’s de-
cision invites “arbitrary and inconsistent decisionmaking.”
UARG, 573 U.S., at 350 (ALITO, J., concurring in part and
dissenting in part). And “[t]hat is not what the Clean [Wa-
ter] Act contemplates.” Ibid.
I would reverse the judgment below and instruct the
——————
9 This early understanding, as the Court describes, is consistent with
the legislative history, which shows that Congress intentionally left reg-
ulation of groundwater pollution to the States. See ante, at 7–8.
18 COUNTY OF MAUI v. HAWAII WILDLIFE FUND
ALITO, J., dissenting
lower courts to apply the test set out above. I therefore re-
spectfully dissent.