Point Source versus Non-Point Source: At What Point Does Groundwater Flow in?

Addressing the Sixth Circuit’s decision after County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020)

 

INTRODUCTION

The Clean Water Act is one of the most effective modern environmental laws to date,1 however, there are still missing puzzle pieces that are required to truly protect the nation’s waters. The possibility of effluent entering navigable waters via groundwater is one of those puzzle pieces. Groundwater as a point source has been uniquely interpreted by the Environmental Protection Agency (EPA) and the federal courts of the United States. The federal courts have all developed their own approaches in interpreting the language of the Clean Water Act. After a bench trial, the district court in the Western District of Tennessee ruled in Tennessee Clean Water Network v. Tennessee Valley Authority 2 that because the coal ash ponds in question were “hydrologically connected” to the groundwater, the Tennessee Valley Authority was in violation of the Clean Water Act.

In 2018, on appeal, the Sixth Circuit reversed the trial court when it incorrectly decided Tennessee Clean Water,3 holding that effluent entering navigable waters via groundwater were not a point source. A recent decision by the U.S. Supreme Court supports that the Sixth Circuit was incorrect in deciding Tennessee Clean Water.4 To better understand this issue, this paper provides: (1) review of the statutory language of the Clean Water Act; (2) discussion of relevant case history; (3) analysis of the U.S. Supreme Court’s resulting test; (4) review of the EPA’s interpretation; and (5) how this test impacts the state of Tennessee and the Sixth Circuit.

 

THE CLEAN WATER ACT

The Clean Water Act (CWA) of 1972 arose out of the need for better control over water pollution5 and the establishment of methods for regulating the pollution in the waters of the United States.6 Congress’s intent in creating the CWA was to “restore and maintain ... the integrity of the nation's waters.”7 In order to achieve that goal, the CWA mandated that “the discharge of any pollutant by any person shall be unlawful.”8 A discharge of a pollutant is defined as “any addition of any pollutant to navigable waters from any point source.”9 In order to control where and how pollution enters the nation’s water, the CWA, enforced by the EPA, regulates what can and cannot enter the waterways through point sources and non-point sources. A point source is defined as “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel ... from which pollutants are or may be discharged.”10 A non-point source is rain, snow, or run off from land11 including fertilizer run-off, causing agricultural pollution.12 The CWA requires a National Pollutant Discharge Elimination System (NPDES) Permit when there is water pollution from a point source.13 A NPDES permit is a license that allows a facility to discharge a pollutant such as burnt waste material, garbage or sewage from a point source into navigable waters.14 In the cases discussed below, the question is not that of whether a groundwater pollutant was discharged into navigable waters, but if the point of the groundwater discharge is considered a point source.

 

COURTS’ VARYING OPINIONS OF GROUNDWATER AS A POINT SOURCE

Since the inception of the CWA, the U.S. Supreme Court has struggled with the act’s vague wording; specifically, wording regarding the definition of “the waters of the United States.”15 In determining if wetlands were considered part of the “waters of the United States,” the court in Rapanos v. United States defined the phrase “the waters of the United States” as those that are “permanent, standing, or continuously flowing bodies of water” such as streams, oceans, rivers and lakes.16 “Waters of the United States” does not include channels where water is only intermittently flowing or that provide drainage for rainfall.17 The court further went on to say that the CWA does not prevent only the direct addition of a pollutant to navigable waters, but it prevents the addition of any pollutant to navigable water.18 Additionally, the court in Rapanos notes that a point source does not need to be the original pollutant source, only that it conveys the pollutant to the navigable water.19 Lower courts have relied on this reading in determining if groundwater constitutes a point source.

 

FOURTH CIRCUIT AND THE HYDROLOGICALLY CONNECTED TEST

The Fourth Circuit also heard this issue in Upstate Forever v. Kinder Morgan Energy Partners, L.P. when a significant amount of gasoline spilled from a broken pipeline operated by a subsidiary of Kinder Morgan Energy Partners, L.P. (Kinder Morgan).20 The gasoline soaked into the ground, resulting in groundwater pollution of nearby tributaries and wetlands.21 The plaintiffs, Upstate Forever and Savannah Riverkeepers, two conservation groups, brought a citizen’s suit to enforce the CWA’s point source pollution NPDES permit requirement.22 The plaintiffs argued that the Kinder Morgan pipeline fits clearly into the definition of a point source.23 In addition, the plaintiffs relied on Rapanos,24 arguing that the CWA does not require the pollution source to be direct25 or ongoing — it only requires that there is an addition of a pollutant to navigable waters.26 The Fourth Circuit answered the question of how direct the addition of the pollutant must to be.

The court held in Rapanos, there is likely a violation of the CWA when pollutants are discharged from a point source and washed downstream.27 Therefore, the Fourth Circuit reasoned that the CWA only requires a point source to add a pollutant to navigable water.28 This resulted in the Fourth Circuit developing the “hydrologically connected” test.29 The court read the CWA to indicate the word “from” as a starting point for the pollution.30 Under this interpretation, to be a point source, the location need only be the first place the pollutant enters groundwater.31 The point source does not need to convey the pollutant directly to the navigable waters.32 The court reasoned that any other reading of the statute would be too broad, requiring a seamless transition from polluter to the navigable water.33 Further, the Fourth Circuit stated that for the groundwater to be a point source it must be clearly connected to the navigable water to be protected under the CWA as a direct hydrological connection.34 The EPA has routinely determined that a direct hydrological connection has required a permit if there is a clear connection between the groundwater point source and the navigable surface water.35 Whether the ground water connection is a direct hydrological connection is a question of fact based on a non-exhaustive list of factors such as time, distance, geology, flow and slope.36 In Upstate Forever,37 the short distance was a major factor in determining that the groundwater functioned as a point source. In addition, there was a measurable quantity of the discharge from the broken pipeline in the groundwater and the surrounding navigable waters.38 The Fourth Circuit held that there was a hydrological connection because any other decision would have created an excuse for polluters to end their point sources right before navigable water, allowing them to avoid NPDES permit requirements.39

 

THE SIXTH CIRCUIT’S HOLDING THAT GROUNDWATER IS NOT A POINT SOURCE

The Sixth Circuit also addressed the issue in Kentucky Waterways Alliance v. Kentucky Utilities Company.40 In Kentucky Waterways Alliance, the defendant, Kentucky Utilities Company, burned coal to produce energy which resulted in coal ash that required disposal. The plant created two man-made ponds used to store the coal ash.41 The co-plaintiffs, Kentucky Waterways Alliance and The Sierra Club, alleged the coal-ash ponds were contaminating groundwater that eventually made its way into the surrounding lakes.42 The Sixth Circuit relied heavily on the conveyance aspect of the CWA: for groundwater to be considered pollution it would need to have traveled through a conveyance, that is “discernable, confined, and discrete.”43 The plaintiffs argued that the hydrological connection theory adopted by the Fourth Circuit should apply to the situation in this case.44 The plaintiffs argued that the coal ash ponds sit above an aquifer, which is groundwater stored in fractured rock.45 The fractured rock system, in theory, would allow the water to travel through cracks that act as a pipe.46

The Sixth Circuit held that the hydrological connection theory fails, by determining that groundwater is not a conveyance as defined by the CWA.47 Although it conveys pollution, groundwater is not a “discernable,” “confined” or “discrete” source and confined to a “separate or distinct” area as required by the CWA to be a point source;48 by the nature of groundwater, it diffuses in all directions.49 The plaintiff’s argued that the karst terrain that the groundwater flows through essentially works as a conduit system. The Sixth Circuit rejects this argument by stating just because there are terrains that allow faster flow, does not make groundwater “discernable, discrete, nor confined.”50 The court also relied on the plain text of the CWA and the word “into.”51 Because the word “into” indicated “directness” the court held that a point source to would need to discharge directly into navigable waters.52 With this holding, the Sixth Circuit disagreed with Justice Scalia’s opinion in Rapanos,53 and held that the district court incorrectly relied on the word “directly.”54 Therefore, when the pollutants were discharged into the Herrington Lake, they came from the groundwater, a non-point source conveyance under the CWA55 which is not subject to a NPDES permit.56

The Sixth Circuit further read the CWA as protecting the nations navigable waters by allowing significant involvement from the states to make environmental regulations to enforce groundwater regulations.57 The court also stated that Congress could have made pollution by groundwater express within the statute, but they chose not to. Because Congress did not do so, the Sixth Circuit inferred that Congress wanted to monitor the polluters, rather than the pollution.58 The Sixth Circuit concluded that reading the CWA to cover groundwater pollution would upend the existing statutory framework because groundwater pollution can be covered under the Resource Conservation and Recovery Act.59 Therefore, the Sixth Circuit does not consider groundwater to be a protected point source as covered by the CWA.60

 

THE NINTH CIRCUIT AND THE FAIRLY TRACEABLE TEST

The County of Maui owns and operates four wells at the Lahaina Wastewater Reclamation Facility (LWRF).61 The wells are the facility’s primary way of discharging sewage into the groundwater, which ends up in the Pacific Ocean.62 There is no factual dispute that some of the sewage reaches the Pacific Ocean.63 The issue in Hawai’i Wildlife Fund 64 is whether the four discrete wells that are connected through groundwater to the Pacific Ocean are subject to a NPDES requirement.65 When LWRF was built, the county knew that the effluent would reach the Pacific Ocean.66 Originally, the operators of the facility wanted to dispose of the effluent directly into the ocean, but facility operators knew it would be damaging to coastal waters, so a more indirect route was chosen instead.67 During an environment reassessment in 1991, the county’s expert stated that the wells’ effluent output into the ocean was the equivalent of one permanently running garden hose located at each meter along 800 meters of coastline.68

In 2013, the EPA, the Hawaii Department of Health and researchers from the University of Hawaii conducted a study on three of the four wells to further research the wells’ hydrological connections.69 The study determined that “a hydrological connection exists between ... wells 3 and 4 and the nearby coastal waters of West Maui.”70 The study found that wells numbered 3 and 4 discharged 64% of the sewage passed through them into the Pacific Ocean.71 The Ninth Circuit determined that because the effluent can be fairly traced back to identifiable sources, the wells were subject to a NPDES permit.72

The Ninth Circuit concluded that the wells were a point source because unlike cases from other circuits, the wells at LWRF were discrete and identifiable establishing them as point sources.73 The effluent was “fairly traceable” back from the ocean to those wells operated by the LWRF.74 The county argued that the point source itself must convey the pollutants directly into the navigable waters.75 The Ninth Circuit held that this was not an accurate reading of the CWA.76 The Ninth Circuit wanted to prevent the county from circumventing NPDES requirements and avoiding liability under the CWA.77 Therefore, the Ninth Circuit relied on the court’s holding in Rapanos, which stated the CWA does not require a discharge from a point source.78

 

THE FUNCTIONAL EQUIVALENT TEST

In 2019, the U.S. Supreme Court granted certiorari to the Ninth Circuit in Hawai’i Wildlife Fund 79 to determine whether groundwater can be considered a point source, with the decision hanging on one word: “from.”80 The Supreme Court ruled that in order for groundwater to be considered a point source, it must be a functional equivalent to a direct discharge.81 The court reasoned that any other reading would not uphold Congress’s intention in establishing the Clean Water Act and allow industries to circumvent the NPDES permit requirement.82 The respondents are several conservation groups that argued the court should adopt the “fairly traceable” test developed by the Ninth Circuit.83 The County of Maui argued that the court should establish a bright-line rule stating that: “[a] pollutant is ‘from’ a point source only if a point source is the last ‘conveyance’ that conducted the pollutant to navigable waters.”84

The court first looked to the intent of Congress in the delegation to the EPA with the NPDES permitting authority. The court held that Congress did not intend to give the EPA the broad authority that the Ninth Circuit’s fairly traceable test would allow.85 Second, the court looked to the wording of the statute.86 The court determined that the statute defined point sources and non-point sources, but explicitly left out groundwater in its definitions, thus the states were able to regulate the groundwater issue.87 The court doubted that Congress intended to give the EPA authority to give the states complete control; instead, it is more likely that the “fairly traceable” test would allow the states the freedom to regulate the pollutants.88 Third, the court looked to the legislative history of the CWA.89 When Congress was considering the various bills that were to become the CWA, there were clear references to groundwater made.90 However, Congress did not put these references to groundwater into the CWA. It instead issued groundwater-related measures required of the states to regulate.91

The court rationalized that Congress intended to address groundwater pollution.92 Fourth, the court looked to regulatory practices of the EPA. The regulatory practice of the EPA undermines the “fairly traceable” test93 because the EPA has applied the permitting provision to pollution discharges that use groundwater to reach navigable waters.94 The court also believed that Maui’s argument in which a permit is not applicable if the pollution travels through any amount of groundwater before was too narrow because it interferes with the EPA’s ability to regulate point sources.95 This would allow a polluter to end a source shortly before reaching navigable water to avoid the NPDES permit requirement.96

The court held that the CWA “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.”97 In other words, the addition of a pollutant requires a permit when the pollution is from a point source or the pollution reaches the same result through roughly similar means, such as through ground water that only has to travel a short time and distance. There are other factors to whether ground water can function as a direct discharge.98 The court allows the lower courts to tailor other factors per the facts of individual cases.99 The courts restrictions will be allowable if they do not create loopholes within state limitations.100

Justice Kavanaugh joined the majority opinion in full and added a concurrence.101 This concurrence supports the using the Rapanos plurality opinion in determining whether ground water is a point source and that polluters cannot avoid the CWA’s permitting requirement by simply discharging into the groundwater because it is a non-covered source.102

The dissent issued by Justice Thomas and joined by Justice Gorsuch stated that the statutory text should be read more narrowly and that a permit is only required when there is discharge directly into the navigable waters.103 Instead of focusing on the word “from,” Justice Thomas focused on the word “addition” combined with “to” and “from,” shows that Congress meant it to be a change in the composition of the navigable water.104 Justice Thomas further states that a release of polluted water to ground water is an addition to the groundwater and not the navigable waters.105 While a permit may be required if a pollutant is discharged through a chain of point sources, the majority’s use of the Rapanos plurality opinion is incorrect because we are not bound by the use of the word “directly“ as dicta. Justice Thomas believed that the best reading would be that a permit is only required when there is a release of pollutants directly from the point source and not from groundwater.106

 

REVIEW OF EPA INTERPRETATION OF POINT SOURCES

When courts are looking to interpret what Congress's intent was in the writing of an act that is then enforced by an agency, courts are not able to substitute their own interpretations of terms into the act.107 Instead, when a court reviews an act such as the CWA and its definition of point sources, the court must determine the answer to two questions: (1) whether Congress has spoken directly to the exact question at issue; and (2) if not, and if the statute is silent or ambiguous with a specific term, whether the agency’s interpretation arbitrary and capricious.108 This is the Chevron deference. Reasonable agency interpretations are given controlling weight as long as they are unambiguous, nonarbitrary and non-capricious.109

While the Chevron deference was not brought up by either side, the court stated here that following the EPA’s interpretation would open a loophole that would allow for easy evasion of the CWA’s basic purpose.110 This interpretation was neither “persuasive or reasonable.”111 Because of the parties' lack of use of the Chevron deference, the court deemed it waived and they were able to use their own interpretation of the statute.112 Allowing the Supreme Court to focus on the word “from.”113

 

WHAT DOES THIS MEAN FOR TENNESSEE AND THE SIXTH CIRCUIT?

Tennessee Clean Water Network, another Sixth Circuit case,114 is similar to Kentucky Waterways Alliance because it is based around coal ash storage. Tennessee Valley Authority runs a coal-powered electricity plant in Gallatin, Tennessee, along the Cumberland River.115 The electricity plant disposes of the coal ash in unlined man-made ponds that are next to the river. The plant has a permit to discharge some of the wastewater through a pipe and into the Cumberland River.116 The plaintiffs in this case are two conservation groups, The Tennessee Clean Water Network and The Tennessee Scenic Rivers Association, who use and enjoy Old Hickory Lake, which is a part of the Cumberland River. The issue in this case was the alleged discharge of the ponded wastewater into groundwater and the Cumberland River’s subsequent exposure.117 The Sixth Circuit reasoned that the coal ash ponds would have needed to discharge directly into the Cumberland River.118

The Sixth Circuit affirmed the ruling of Kentucky Waterways Alliance 119 that groundwater does not function as a point source.120 With the U.S. Supreme Court’s ruling in Hawaii Wildlife Fund in 2020, that a NPDES permit is required when there is a functional equivalent to a direct discharge, there is a potential that the Kentucky Waterways Alliance 121 and the Tennessee Clean Water Network 122 cases may be overruled. The Sixth Circuit may be required to review the groundwater discharges to determine if the groundwater will function as a direct discharge. The court left it up to the lower courts to tailor the test with the facts of their specific cases.123

When reviewing this case, it will be important for the lower courts to note that the ponds here were unlined man-made ponds that sit close to the river.124 The Cumberland is a “water [] of the United States.”125 There are two coal ash ponds: (1) the Non-Registered Site (NRS) and (2) the Ash Pond Complex (complex).126 The NRS has closed, and the complex was in the process of being closed at the time of the case. The NRS sits on top of loose soil, silt and clay. Because it has been closed there is no water in the NRS.127 Expert testimony in the trial court found that both ponds penetrate the water table in spots.128 In addition, the NRS previously leaked, leaving evidence that there could still be some leakage that occurs with the 2.3 million cubic yards of left-over coal ash.129 In contrast, the complex sits on top of karst terrain, made up of water-dissolving limestone. Groundwater easily moves through the cracks within the terrain below the complex.130 Historically, there has been significant leakage from the complex.131

When applying the functional equivalent test, which provides 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.” Consequently, it is likely that the coal ash ponds that are next to the Cumberland River will be deemed a point source. Some factors that would support this are: (1) the short distance the coal ash has to travel; (2) the nature of which the pollutant travels; and (3) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source. Here, the ponds are next to the river; the ponds are unlined, which allows the coal ash to freely soak into the water table or fall through the fractures in the karst terrain; and because the ponds have leaked previously, the amount that is entering the navigable waters should be easy to determine.

 

CONCLUSION

The Sixth Circuit incorrectly determined if ground water acts as a point source. The functional equivalent test recently developed by the U.S. Supreme Court allows Tennessee and the Sixth Circuit to correct a serious environmental issue. The functional equivalent test will allow the government, states and industries to uphold the basic elements of the Clean Water Act. This will continue to improve our nation’s navigable waters, drinking water, recreational waters and ecosystems in the water for a long time to come.

 

Kate L. Ernst is...

  1. The Clean Water Case of the Century, https://earthjustice.org/features/supreme-court-maui-clean-water-case (last visited Apr. 28,2021).
  2. 905 F.3d 436 (6th Cir. 2018).
  3. Id. 
  4. Id.
  5. J.B. Rul et al., CASES AND MATERIALS: THE PRACTICE AND POLICY OF ENVIRONMENTAL LAW 237 (2017). 
  6. Summary of the Clean Water Act, https://www.epa.gov/laws-regulations/summary-clean-water-act (last visited Apr. 28, 2021).
  7. 33 U.S.C. § 1251(a).
  8. 33 U.S.C. § 1311 (a).
  9. 33 U.S.C. § 1362 (12).
  10. 33 U.S.C. § 1362 (14).
  11. Basic Information about Nonpoint Source (NPS) Pollution, https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution (last visited Apr. 28, 2021).
  12. 33 U.S.C. §1362 (14); Id., Where the water picks up natural, as well as man-made pollutants, which eventually end up in rivers, lakes, oceans.
  13. 33 U.S.C. § 1342.
  14. Rapanos v. United States, 547 U.S. 715, 739 (2006).
  15. Id. 
  16. Id. 
  17. Id. at 743.
  18. Id.
  19. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 641 (4th Cir. 2018). 
  20. Id. at 644.  Navigable water was only about 1000 feet away. 
  21. Id. 
  22. Id. at 647.  The CWA defines a pipe as a point source. 
  23. 547 U.S. 715 (2006).
  24. Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018); Rapanos v. United States, 547 U.S. 715 (2006).
  25. Rapanos, 547 U.S. at 648.
  26. Id. at 715.  
  27. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 648 (4th Cir. 2018).
  28. Id. at 651. 
  29. Id. at 650.
  30. Id. at 650.
  31. Id. 
  32. See id. at 650–¬651.  Discharge of a pollutant into groundwater qualifies as a point source and it does not need to be channeled until it reaches the navigable water. 
  33. Id. at 651.
  34. See id. 
  35. Id. 
  36. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018).
  37. Id. at 652. 
  38. Id. 
  39. 905 F.3d 925 (6th Cir. 2018).
  40. Id. at 927–28.
  41. Id. 
  42. Id. at 933.
  43. Id. at 932.
  44. Id. at 931.  Fractured rock facilitates ground water movement. 
  45. Id. at 934.
  46. Id. at 931.  The karst rock acts like a conduit similar to a pipe or other point source. 
  47. Id. 
  48. Id. at 933.
  49. Id. at 934.
  50. Id. 
  51. Id. 
  52. Rapanos v. United States, 547 U.S. 715, (2006).
  53. Kentucky Waterways Alliance, 905 F.3d at 936.
  54. Id. at 935.
  55. Id. at 929.
  56. Id. at 936–37.
  57. Id. at 937.
  58. Id. The Resource Conservation and Recovery Act is specifically designed to cover solid waste such as coal ash. 
  59. Id. at 940.
  60. Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737, 742 (9th Cir. 2018).
  61. Id.
  62. Id. 
  63. Id.
  64. See id. at 745.
  65. Id. at 742.
  66. Id.
  67. Id. The wells inject 2.8 million gallons of effluent per day into the ocean which equates to approximately 3,456 gallons per meter per day along the coastline. 
  68. Id.
  69. Id. at 743.
  70. Id. 
  71. Id. at 749.
  72. Id.
  73. Id. 
  74. Id. at 745.
  75. Id. at 743.  Eighty-four days after the tracer dye was injected into Wells 3 and 4, the dye emerged about a half-mile southwest of the Lahaina Wastewater Reclamation Facility.
  76. Id. at 752.
  77. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020).
  78. County of Maui, Hawaii,140 S.Ct. at 1470.  The linguistic question here concerns the statutory word “from.”
  79. Id. at 1476.
  80. See id. at 1470–71.
  81. Id. at 1470.
  82. Id. 
  83. Id at.1471.
  84. Id. 
  85. Id. at 1471.
  86. Id.
  87. Id. 
  88. Id. at 1472.
  89. Id. 
  90. See id.
  91. Id. 
  92. Id. 
  93. Id. 
  94. Id. at 1473.
  95. Id. at 1476.
  96. Id. 
  97. Id. at 1476-–77.  Other factors that may be taken into account are: (1) transit time; (2) distance travelled; (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 pollution has maintained its specific identity. 
  98. Id. at 1477.
  99. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct 1462, 1478 (2020) (Kavanaugh, J. Concurring). 
  100. Id. 
  101. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct 1462, 1479 (2020) (Thomas, J. dissenting). 
  102. See id. Justice Thomas described it as an augmentation or an increase and the joining or uniting of one thing to another. 
  103. See id. Justice Thomas states that the navigable waters have not been augmented with pollutants from the point source, but instead it occurs with pollutants from the ground water. 
  104. Id. at 1482.
  105. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)
  106. Id.
  107. Id. at 844
  108. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1474 (2020).
  109. Id. 
  110. Clean Water Act — Review of Administrative Action — Agency Interpretation —County of Maui v. Hawaii Wildlife Fund, 134:410 Harv. L.J. 590, 590-909.
  111. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. at 1470. 
  112. Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d 436 (6th Cir. 2018).    
  113. Id. at 438.
  114. Id. at 441.
  115. Id. at 438.
  116. Id. at 444.
  117. Kentucky Waterways Alliance v. Kentucky Utilities Company, 905 F.3d 925 (6th Cir. 2018).
  118. Tennessee Clean Water Network, 905 F.3d at 443.
  119. Kentucky Waterways Alliance, 905 F.3d 925.
  120. Tennessee Clean Water Network, 905 F.3d 436
  121. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct 1462, 1477 (2020).
  122. Tennessee Clean Water Network, 905 F.3d at 439.
  123. Id.
  124. Id.
  125. Id. 
  126. Id. at 440.
  127. Id. at 439–40.
  128. Id. at 440.
  129. See id.
  130. Id. at 440.
  131. See id.