Tulane University Journal Publishing

Harness, Greyson

Masthead

Forrester, Ian

English

A Valediction Forbidding Mourning

Schwartzwald Meaders, Julie

229 
RECENT DEVELOPMENTS IN 
ENVIRONMENTAL LAW 
I.  CLEAN WATER ACT 
County of Maui v. Hawaii Wildlife Fund: Regulating 
 Point Source Discharges Through Groundwater 
 Under the Clean Water Act, point source discharges to navigable 
waters of the United States require a special permit from the 
Environmental Protection Agency (EPA).1 These National Pollution 
Discharge Elimination System (NPDES) permits provide the EPA a means 
to regulate the discharge of pollutants from point sources,2 which are 
defined under the Clean Water Act as “any discernible, confined and 
discrete conveyance . . . from which pollutants are or may be discharged,” 
such as pipes, channels, or wells.3 In April 2020, the United States 
Supreme Court decided that even point source discharges that travel 
through groundwater before reaching navigable waters may be regulable 
under the NPDES permitting system, thereby closing up a potential 
polluter loophole.4 This loophole would have not required an NPDES 
permit for discharges carried through a pipe that ended, for example, a few 
feet before reaching navigable waters.5 Now, under the Supreme Court’s 
holding in County of Maui v. Hawaii Wildlife Fund, such discharges are 
regulable under the NPDES permitting system, as are any discharges 
through groundwater that are the “functional equivalent of a direct 
discharge.”6 
 The dispute giving rise to this Supreme Court suit involved the 
County of Maui’s wastewater reclamation facility, which collects sewage 
from the surrounding area and partially treats it.7 The facility was pumping 
approximately four million gallons of this partially treated water into the 
ground via injection wells each day.8 The effluent then traveled through 
                                                 
 1. 33 U.S.C. § 1311(a) (2020); 1342(a)(1) (2020). 
 2. Id. 
 3. 33 U.S.C. § 1362(14) (2020). 
 4. Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1476 (2020). 
 5. Id. 
 6. Id. (emphasis in original). 
 7. Id. at 1469. 
 8. Id.  
 
 
 
 
230 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 34:229 
 
groundwater about half a mile into the Pacific Ocean9 and led to elevated 
levels of a nitrogen isotope in algae growing in nearshore waters south of 
the treatment plant.10 In response, environmental groups brought a Clean 
Water Act citizens’ suit against the County of Maui for discharging a 
pollutant to navigable waters, albeit through groundwater, without the 
requisite NPDES permit.11 The Hawai’i District Court held the County of 
Maui liable for violating the Clean Water Act,12 a decision affirmed by the 
Ninth Circuit Court of Appeals.13 The Supreme Court granted certiorari to 
determine whether the Clean Water Act “requires a permit when pollutants 
originate from a point source but are conveyed to navigable waters by a 
nonpoint source”14 in light of the different standards adopted by various 
Courts of Appeals to determine this issue.15 
 Though the Supreme Court’s holding that the Clean Water Act 
requires an NPDES 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” closed up a potential polluter loophole, it by no means 
established a bright-line rule. Instead, the Court set forth a list of seven 
factors to be considered when determining what constitutes a “functional 
equivalent” of a direct discharge: “(1) transit time, (2) distance traveled, 
(3) the nature of the material through which the pollutant travels, (4) the 
                                                 
 9. Id. Tracer dye studies conducted by the EPA, the Hawaii Department of Health, and 
researchers at the University of Hawaii established a hydrological connection between the partially 
treated wastewater and the coastal waters, finding that sixty-four percent of the effluent injected 
into the wells discharged into the ocean. Haw. Wildlife Fund v. Cnty. of Maui (Haw. Wildlife II), 
881 F.3d 754, 759 (9th Cir. 2018), vacated, 140 S. Ct. 1462. 
 10. Haw. Wildlife Fund v. Cnty. of Maui (Haw. Wildlife I), 24 F. Supp. 3d 980, 984 (D. 
Haw. 2014). 
 11. Cnty. of Maui, 140 S. Ct. at 1469. 
 12. Haw. Wildlife I, 24 F. Supp. 3d at 1005 (“This court holds only that, given the 
undisputed evidence in the record showing that pollutants rapidly flow from the aquifer into the 
ocean and cause significant change to the ocean water near the submarine seeps, the County is 
liable under both the Healdsburg framework articulated by the parties and the indirect discharge 
(or “conduit”) framework.”). 
 13. Haw. Wildlife II, 881 F.3d at 765 (“We hold the County liable under the CWA because 
(1) the County discharged pollutants from a point source, (2) 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 water, and (3) the pollutant levels reaching navigable water are more 
than de minimis.”). 
 14. Cnty. of Maui, 140 S. Ct. at 1468. 
 15. Id. at 1469-70 (While the Ninth Circuit relied on the “fairly traceable standard,” Haw. 
Wildlife II, 881 F.3d at 749, the Fourth Circuit relied on a “direct hydrological connection 
standard,” Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 
2018), and the Sixth Circuit held that discharges through groundwater are excluded from NPDES 
permitting requirements, Kentucky Waterways Alliance v. Kentucky Util. Co., 905 F.3d 925, 932-
38 (6th Cir. 2018)). 
 
 
 
 
2021] RECENT DEVELOPMENTS 231 
 
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 pollution (at that point) has maintained its specific identity.”16 
While the Court stated that time and distance will usually be the most 
important of these factors, it noted that this will “not necessarily [be true 
in] every case.”17 Further, the Court explained that if a discharging pipe 
ends fifty miles from navigable waters and discharges effluent into 
groundwater, and the effluent mixes with “much other material, and end[s] 
up in navigable waters only many years later, the permitting requirements 
likely do not apply.”18  
 For the time being, however, federal enforcement against such 
indirect discharges remains unlikely. The EPA issued an interpretive 
statement asserting that discharges into groundwater are categorically 
excluded from NPDES permitting requirements while petition for 
certiorari was pending in this case, and thereby expressed its disinclination 
to expend resources to limit such discharges.19 However, some states 
implement the NPDES program based on delegated authority from the 
EPA, and those states may be more likely to exercise their authority to 
require NPDES permits for point source discharges through 
groundwater.20 Further, federal enforcement could look quite different in 
2021 as Biden’s political appointments are confirmed.  
Julie Schwartzwald Meaders* 
                                                 
 16. Id. at 1476-77. 
 17. Id. at 1477. 
 18. Id. at 1476 (emphasis added). 
 19. Id. at 1470 (citing 84 Fed. Reg. 16810 (2019)). 
 20. 33 U.S.C. § 1342(b). 
 * © 2021 Julie Schwartzwald Meaders, J.D. candidate 2021, Tulane University Law 
School; B.A. 2011, Political Science & Communications, Tulane University.   


County of Maui v. Hawaii Wildlife Fund: Regulating Point Source Discharges Through Groundwater

Betzios, Alexandra

 
 
 
 
2021] RECENT DEVELOPMENTS 241 
 
IV.  ARCTIC DRILLING 
Biden Administration Temporarily Halted Federal Oil and Gas 
 Activity in the Arctic National Wildlife Refuge Two Weeks 
 After the Trump Administration Began Issuing Licenses 
 On August 17, 2020, the Trump Administration announced that after 
forty years of protection, the Arctic National Wildlife Refuge would be 
open to drilling1 and the Administration began selling leases on January 6, 
2021.2 The Arctic contains approximately thirteen percent of the world’s 
undiscovered conventional oil and thirty percent of the world’s 
undiscovered natural gas resources,3 and it had been closed to drilling for 
decades.4 Under Trump’s drilling plan, however, gas and oil rights for the 
1.6-million-acre coastal plain within the wildlife refuge were set to be 
auctioned off by the end of 2021.5 However, on his first day in office, 
newly elected President Joe Biden announced a temporary moratorium on 
oil and gas leasing in the Arctic National Wildlife Refuge.6 
 The National Wildlife Range was first established in 1960.7 In 1980, 
President Carter signed the Alaska National Interest Lands Conservation 
Act.8 The Act renamed the range to the Arctic National Wildlife Refuge 
and contained four main objectives for the refuge: (1) conserving animals 
and plants in their natural diversity, (2) providing a place for hunting and 
gathering activities, (3) protecting water quality and quantity, and 
(4) fulfilling international wildlife treaty obligations.9 As a result of the 
                                                 
 1. Juliet Eilpern, Trump Finalizes Drilling Plan for Arctic National Wildlife Refuge, 
WASH. POST (Aug. 17, 2020, 9:24 AM), https://www.washingtonpost.com/climate-environment/ 
2020/08/17/trump-drilling-arctic-national-wildlife-refuge-alaska/ [https://perma.cc/BE6Z-Q5G6? 
type=image]. 
 2.  Becky Bohrer, Biden Plans Temporary Halt of Oil Activity in Arctic Refuge, AP  
News (Jan. 20, 2021), https://apnews.com/article/joe-biden-us-news-alaska-wildlife-arctic-cdd89 
af06cb892e042782ace3abca8eb [https://perma.cc/?type=image]. 
 3. Arctic Oil and Natural Gas Resources, U.S. ENERGY INFO. ADMIN., https://www.eia. 
gov/todayinenergy/detail.php?id=4650 [https://perma.cc/5UCK-JFLV?type=image].  
 4.  Henry Fountain, Sale of Drilling Leases in Arctic Refuge Fails to Yield a Windfall, 
N.Y. TIMES (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/climate/arctic-refuge-drilling-
lease-sales.html [https://perma.cc/B7QT-LC9C?type=image]. 
 5. Eilpern, supra note 1.  
 6.  Bohrer, supra note 2. 
 7. About the Refuge, U.S. FISH & WILDLIFE SERV., https://www.fws.gov/refuge/ 
Arctic/about.html [https://perma.cc/5Q5C-SVZ5?type=image]. 
 8. Former President Carter Speaks on Alaska, U.S. FISH & WILDLIFE SERV., https:// 
www.fws.gov/refuges/refugeupdate/marchapril_2011/caribouwentby.html [https://perma.cc/L3R
Q-EJCT?type=image]. 
 9. About the Refuge, supra note 7.  
 
 
 
 
242 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 34:229 
 
act, the wildlife refuge has remained a pristine frontier for hundreds of 
species of plants and animals alike.10 
 In December 2014, the U.S. Department of the Interior found that 
there is a seventy-five percent chance of a major oil spill occurring in the 
Arctic as a result of long-term exploration and drilling.11 Generally, oil can 
be categorized in four ways: (1) light oils, (2) non-sticky oils, (3) heavy 
oils, and (4) nonfluid oils.12 When a large scale oil spill occurs, heavy and 
nonfluid oils—which are thick and tacky—pose the largest threat to plants 
and wildlife.13 Thus, the Trump administration’s reckless decision to open 
up the coastal plain to drilling despite the possibility that an impending 
spill would harm the plants and wildlife. 
 Animals in the Arctic are already adversely impacted by climate 
change. As a result of the increase in global temperature, many arctic 
animals have seen a drastic decrease in population over the past few years 
due to the destruction of their habitats.14 Along with climate change, the 
development of oil facilities and the associated infrastructure destroy the 
surrounding natural environments.15 Additionally, an inevitable oil spill in 
the Arctic would only intensify the drop in population of arctic wildlife. 
When fur-mammals such as polar bears and arctic foxes become coated in 
heavy oil, they lose the ability to regulate their body temperature and 
become at risk of hypothermia.16 Similar to fur-mammals, birds suffer a 
similar fate when coated in heavy oil.17 Not only are birds unable to 
regulate their body temperature when covered in oil, but they are also 
                                                 
 10. PROTECT THE ARCTIC, https://www.protectthearctic.org/alaska-wildlife-arctic-
national-wildlife-refuge?hsCtaTracking=1e55ed03-51b9-447b-969e-bf8f9c802c42%7C1c9ff97f-
7df5-4d5a-ae82-59d97d7f2003 [https://perma.cc/Z26J-6B4S?type=image].  
 11. U.S. DEPT. OF THE INTERIOR, BUREAU OF OCEAN ENERGY MGMT., ALASKA OUTER 
CONTINENTAL SHELF CHUKCHI SEA PLANNING AREA OIL AND GAS LEASE SALE 193, FINAL SECOND 
SUPPLEMENTAL ENV’T IMPACT STATEMENT, VOL. 1 at 159 (OCS EIS/EA, BOEM 2014-669, Feb. 
2015). 
 12. Types of Crude Oil, EPA, https://www.epa.gov/emergency-response/types-crude-oil 
[https://perma.cc/BRM4-3VM4?type=image]. 
 13. How Oil Harms Animals and Plants in Marine Environments, NAT’L OCEANIC & 
ATMOSPHERIC ADMIN. OFF. OF RESPONSE & RESTORATION, https://response.restoration.noaa. 
gov/oil-and-chemical-spills/oil-spills/how-oil-harms-animals-and-plants-marine-environments. 
html [https://perma.cc/3SC4-CKZ6?type=image]. 
 14. Jeffrey F. Bromaghin et al., Polar Bear Population Dynamics in the Southern Beaufort 
Sea During a Period of Sea Ice Decline, 25 ECOLOGICAL SOC’Y AM. 634, 647 (2015).   
 15. Oil and Gas Development, WORLD WILDLIFE FOUND., https://www.worldwildlife.org 
/threats/oil-and-gas-development [https://perma.cc/R7JH-HCTC?type=image].  
 16. How Oil Harms Animals and Plants in Marine Environments, supra note 13. 
 17. Id.  
 
 
 
 
2021] RECENT DEVELOPMENTS 243 
 
unable to flee from predators.18 Moreover, marine life would suffer as a 
result of a major oil spill due to the devastation of critical feeding 
grounds19 By allowing development on the refuge and neglecting the high 
probability of a major oil spill, exploration and drilling will further 
contribute to the displacement, death, and extinction of many already 
struggling species.  
 Although the Trump administration began rolling back many 
environmental protections, several corporate organizations have taken a 
stand against drilling in the Arctic. Five of the largest banks in the United 
States have decided that they will not finance oil drilling in the Arctic 
National Wildlife Refuge.20 These banks include Morgan Stanley, Wells 
Fargo, Goldman Sachs, JPMorgan Chase, and Citigroup.21 As major 
investors both in the United States and around the globe are starting to 
recognize the importance of environmental preservation, informal 
pressures are mounting against drilling in the Artic National Wildlife 
Refuge. For example, only half of the oil and gas leases offered for sale by 
the Trump Administration on January 6 received bids, and all but two of 
those bids came from the state of Alaska itself.22  
 Biden’s order places a temporary moratorium on federal oil and gas 
activity in the Arctic, citing “legal deficiencies” underlying the Trump 
Administration’s Coastal Plain Oil and Gas Leasing Program, which 
allowed the lease sales.23 The Order also calls on the Secretary of the 
Interior to review the program and, “as appropriate and consistent with 
applicable law, conduct a new comprehensive analysis of the potential 
environmental impacts of the oil and gas program.”24 Meanwhile, pending 
lawsuits challenge the Trump Administration’s environmental review 
process.25 While the Biden Administration’s moratorium is only 
                                                 
 18. Oil Spills, NAT’L OCEANIC & ATMOSPHERIC ADMIN., https://www.noaa.gov/education/ 
resource-collections/ocean-coasts/oil-spills [https://perma.cc/6H9Z-RYDQ?type=image]. 
 19. Arctic Animals at Risk: Which Animals Are Most Threatened by Oil Development?, 
THE WILDERNESS SOC’Y, https://www.wilderness.org/articles/article/arctic-animals-risk-which-
animals-are-most-threatened-oil-development# [https://perma.cc/5H77-3XX3?type=image]. 
 20. Tim Woody, Five Major Banks Refuse to Fund Arctic Refuge Oil Drilling,  
THE WILDERNESS SOC’Y BLOG (Apr. 23, 2020), https://www.wilderness.org/articles/blog/five-
major-banks-refuse-fund-arctic-refuge-oil-drilling# [https://perma.cc/5HUL-PWA5?type=image]. 
 21. Id.  
 22. Fountain, supra note 4. 
 23.  Executive Order on Protecting Public Health and the Environment and Restoring 
Science to Tackle the Climate Crisis, § 4 (Jan. 20, 2021), https://www.whitehouse.gov/briefing-
room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-
and-restoring-science-to-tackle-climate-crisis/ [https://perma.cc/5H2P-2KSF?type=image]. 
 24.  Id. 
 25.  Bohrer, supra note 2. 
 
 
 
 
244 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 34:229 
 
“temporary,” the current political climate and the problems with the initial 
environmental review process suggest that the Arctic National Wildlife 
Refuge may once again soon be closed to drilling. 
 
Alexandra Betzios* 
                                                 
 * © 2021 Alexandra Betzios, J.D. Candidate 2021, Tulane University Law School; 
B.S. 2018, Earth & Environmental Sciences, Tulane University. 


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