The Conservation Law Foundation has now sued the Town of Barnstable, Massachusetts alleging that its discharge of treated effluent to the ground approximately 1.5 miles from the nearest Water of the United States is a point source discharge prohibited by the Federal Clean Water Act.

CLF is asking the Federal District Court in Massachusetts to apply the Supreme Court's 2020 Functional Equivalence test for determining the jurisdictional reach of the Clean Water Act.

The Barnstable facility in question has all of the permits that the Federal and State Governments think it needs.

We know that Justice Breyer, writing for the Supreme Court in Maui v. Hawaii Wildlife Fund, thought that a distance of 50 miles between a point source discharge and a Water of the United States was "likely" too far to trigger Federal jurisdiction but he was also quite concerned about the possibility that a pipe ending a few feet from a Water of the United States should be subject to Federal jurisdiction.

That's why the Supreme Court identified distance and transit time as the most important of the seven Maui Functional Equivalence factors.

Is 1.5 miles in or out?  How do the other Functional Equivalence factors apply to groundwater containing treated effluent that still contains nitrogen, albeit at a concentration less than the Drinking Water Standards?  The Supreme Court said that eventually some number of cases like this one will answer these questions.  That will take years and cost millions.  Wouldn't it be easier for Congress to answer the question of Federal jurisdiction over groundwater once and for all?