Insights
Publications

Supreme Court Ruling Expands Reach of Clean Water Act NPDES Permitting

May 21, 2020 Articles
California Ag Net

Read the article on California Ag Net, here.

In April, the United States Supreme Court issued a landmark ruling clarifying the reach of the federal Clean Water Act. The Court decided that a discharge of pollutants from a point source to groundwater is subject to regulation under the act, if the discharge is the “functional equivalent” of a discharge to waters of the United States (which include rivers, streams, creeks, lakes, and other surface waters).

This ruling has the potential to both (1) expand the range of discharges, including from agricultural operations, that are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit, and (2) increase the risk of citizen suit litigation alleging that operations discharging to groundwater have failed to comply with the Clean Water Act.

The County of Maui Decision: Background

The case decided by the Court, County of Maui, Hawaii v. Hawaii Wildlife Fund, concerned a wastewater reclamation facility operated by Maui County, which pumps approximately four million gallons of treated wastewater effluent per day into groundwater. The effluent travels through groundwater to the Pacific Ocean.

In 2012, environmental groups filed a citizen suit under the Clean Water Act, arguing that even though the wastewater was discharged to groundwater, the county was violating the act because it was discharging a pollutant from a point source (the wastewater facility) to waters of the United States (which include “territorial seas,” like the ocean waters around Hawaii) without an NPDES permit. The environmental groups prevailed in the Ninth Circuit Court of Appeals, and the case was then heard by the Supreme Court.

The Court’s New Rule: The “Functional Equivalent” of a Direct Discharge Requires an NPDES Permit

The Supreme Court reversed the environmental group’s victory and sent the case back to the lower courts to evaluate the key issues under a new standard set by the Court: the Clean Water Act requires a permit when there is a direct discharge from a point source into waters of the United States or “when there is the functional equivalent of  a direct discharge.”

The Court noted that the functional equivalence evaluation “depends upon how similar to (or different from) the particular discharge is to a direct discharge.” Beyond that, the Court declined to provide more specificity, asserting “there are too many potentially relevant factors applicable to factually different cases,” which could be addressed in future court decisions and EPA and state administrative guidance. However, it did list “some” of the factors that “may prove relevant”:

1)    transit time;

2)    distance traveled;

3)    nature of the material through which the pollutant travels;

4)    extent to which the pollutant is diluted or chemically changed as it travels;

5)    amount of pollutant entering waters of the United States relative to the amount that leaves the point source;

6)    manner by or area in which the pollutant enters the waters of the United States; and

7)    degree to which the pollutant has maintained its specific identity at that point of entry.

Importantly, the Court stated: “Time and distance will be the most important factors in most cases, but not necessarily every case.”

Finally, it cautioned that implementation of its rule “should not create serious risks either of undermining state regulation of groundwater or of creating loopholes that undermine the statute’s basic federal regulatory objectives.”

The Court’s Ruling Will Impact the Regulated Community, Including Some Agricultural Operations

Although storm water runoff and return flows from irrigated agriculture may travel through groundwater to waters of the United States, the County of Maui holding did not alter the Clean Water Act’s exemption of these from the definition of a “point source.” An NPDES permit is still not required for such flows.

However, states have the authority to regulate nonpoint sources like agricultural runoff and may choose to modify the scope of their permitting requirements in light of County of Maui and subsequent developments in Clean Water Act regulation.

Moreover, to the extent that any agricultural operations involve mechanical processes that generate and discharge wastewater to the ground (and ultimately to groundwater), there is now an increased risk that such discharges could be regulated under the Clean Water Act and require an NPDES permit. The ruling may also impact operations dealing with accidental releases of contaminants to groundwater, as well as owners/operators of sites with legacy environmental contamination.

Right now, it is unclear to what extent the Supreme Court’s new rule is a “game-changer” in terms of how many dischargers to groundwater will be brought into the NPDES permitting regime. As with other aspects of Clean Water Act regulation—such as section 404 dredge-and-fill permitting—implementation by states and federal courts will vary broadly, until the Supreme Court revisits the issue at some future (likely, much later) date. Until then, dischargers will need to track the judicial decisions and administrative guidance in their jurisdiction to ensure they remain in compliance.

County of Maui may also spur an increase in citizen suit litigation by private parties and environmental groups challenging a discharger’s compliance with NPDES permitting requirements. Such litigation could claim that an operation’s discharges to groundwater trigger the requirement for NPDES permitting, even if regulators have not yet taken such a position. If successful, such suits could result in courts assessing penalties (payable to the federal government) and/or payment of the citizen enforcer’s attorney’s fees.

In light of the evolving regulatory and legal framework and related risks, agricultural growers and producers should consider proactively assessing their exposure to a claim—by either a regulator or citizen enforcer—that their operations require an NPDES permit. If the exposure is significant, they may consider options to mitigate regulatory and liability risks such as preemptively submitting an NPDES permit application or requesting a permitting determination from the relevant implementing authority.

Firm Highlights

Event

17th Annual Santa Fe Advanced Conference: Natural Resource Damages

Farella Braun + Martel is a sponsor of the Law Seminars and Internationals' 17th Annual "Santa Fe" Advanced Conference on Natural Resource Damages.  Sarah Bell, a program co-chair, will participate on two panels: "Best...

Read More
News

Farella Announces 2024 Leadership Council on Legal Diversity Pathfinders: Taylor Rottjakob and John Ugai

Farella Braun + Martel is proud to announce that senior associates  Taylor E. Rottjakob and John M. Ugai have been named 2024 Leadership Council on Legal Diversity (LCLD) Pathfinders. Pathfinders have been identified as...

Read More
Publication

New PFAS Federal Drinking Water Standards Create Major Liability and Litigation Risk

The United States Environmental Protection Agency has released a final regulation setting individual drinking water maximum contaminant levels (MCLs) for five per-and polyfluoroalkyl substances (PFAS). These MCLs are incredibly stringent due to EPA’s stated concerns...

Read More
Publication

New PFAS Listing Under Superfund Will Lead to Major Expansion of Liability

On April 19, 2024, the U.S. Environmental Protection Agency (USEPA) announced its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation...

Read More
Publication

Where Are We Now, Following Maui County, Sackett, and the Latest EPA Guidance?

The last few years have seen significant developments in our understanding of the reach of the federal Clean Water Act (CWA). (Indeed, “reach” here can be interpreted literally and figuratively.) The two issues plaguing...

Read More
Publication

Wind Energy Project Approvals and Tax Credits Look To Outpace Macroeconomic and Supply Chain Headwinds in 2024

A snapshot of the renewable wind industry on October 31, 2023, captures many of the current challenges and opportunities for the industry and regulatory agencies heading into 2024.  That day, the world’s largest offshore...

Read More
Event

17th Annual Santa Fe Advanced Conference on Natural Resource Damages

Farella Braun + Martel is a sponsor of the Law Seminars and Internationals' 17th Annual "Santa Fe" Advanced Conference on Natural Resource Damages.  Christopher Rendall-Jackson will participate on a panel titled "The Latest on the...

Read More
News

Lawdragon Names 7 Farella Lawyers Among “Leaders in Environmental Law”

Northern California legal powerhouse Farella Braun + Martel is pleased to announce that seven lawyers were selected to The Lawdragon Green 500: 2024 Leaders in Environmental Law . Farella lawyers selected for inclusion: Sarah...

Read More
News

EPA Designates PFOA and PFOS as Hazardous Substances

Don Sobelman provided expert commentary in the  Chemical & Engineering News article "EPA Designates PFOA and PFOS as Hazardous Substances." Excerpt from the article: Lawyers are warning anyone purchasing an industrial site where PFOA...

Read More
News

Chambers USA 2024 Recognizes Farella Braun + Martel Lawyers, Practices

Farella Braun + Martel is pleased to announce that Chambers USA has recognized 16 lawyers and six practice areas in the legal directory’s 2024 edition. Individual California and Western U.S. Rankings: Sarah Bell &ndash...

Read More