ILMA Compoundings - June 2020 - 37

WASHINGTON LANDSCAPE

NPDES Permitting After
Maui, and Jurisdictional
Waters
By Matthew Levetown

n a closely watched case on National
Pollutant Discharge Elimination
System (NPDES) permits, the
Supreme Court issued a ruling in
County of Maui v. Hawaii Wildlife
Fund, et. al. (Maui) that finally
resolved - well, not much. The case
centered on whether a sewage treatment plant needs an NPDES permit
to discharge pollutants via wells into
groundwater that then travels a halfmile to the Pacific Ocean.
Justice Stephen Breyer, writing for a
6-3 majority, added a new fact-based
test drawn from the Clean Water Act's
(CWA) legislative history and sent the
decision back to the lower courts. As
a result, a facility questioning whether
it needs an NPDES permit must ask
whether its point source pollution into
a navigable water is due to a direct
discharge or to the functional equivalent of a direct discharge.
To be sure, in the battle of jurisdictional water disputes, there is a
gap between the federal government's
requested "no groundwater ever,"
mirrored in the Environmental Protection Agency's (EPA) new Navigable
Waters Protection Rule (NWPR) rule
published two days before the Maui
decision and requiring NPDES permits for "fairly traceable" discharges.
Focusing on the CWA's text and
legislative history, the court noted
that the statute specifically mentions

Even if the agency declines to regulate
groundwater, NPDES permits can still be
required under the 'functional equivalency' language if groundwater leads to a navigable water."
wells as a point source, and the EPA
administrator at the time wanted some
governance over groundwater. Wells,
by definition, discharge under the surface, so the court's hands are tied - if
all groundwater is excluded, the ruling
creates a hole in statutory language at
odds with congressional intent.
At the same time, the court was
careful to note that some discharges,
even if traceable, are so distant in time
and space from jurisdictional waters
that no permit is required. Inquiries
into groundwater chemical reactions
or dilution of pollutants that change
the nature of effluent by the time it
reaches waters are to be considered
on a case-by-case basis. Due to the
unique nature of discharges, the court
declined to issue clear guidance,
and instead provides two illustrative
examples. The first is a pipe discharging effluent onto a beach that flows
into the nearby ocean, which clearly
requires a permit. The other, which
is "likely" to not need a permit, is a
discharge into groundwater 50 miles
and years away from tainting the nearest

navigable waters. Essentially, there
are two important characteristics to
consider (though still not definitive):
traversal time from a point source and
distance traveled.
NWPR AND MAUI
The Maui decision seems at odds
with the EPA's final publication of its
NWPR, which replaced the Obamaera Waters of the United States, or
WOTUS, rule. The NWPR provides
an express list of what waters are nonjurisdictional, including groundwater
and waste treatment systems. Summarizing simply, jurisdictional waters are
narrowed to traditionally navigable
waters as well as wetlands, lakes and
impoundments of those waters that
are flooded part of the year. While
effective and relatively clear, the
NWPR was immediately challenged in
court by environmental groups.
Assuming the NWPR remains,
"waste treatment systems" and
"groundwater discharged through subsurface drainage systems" are expressly
not jurisdictional waters. The NWPR
Continued on page 39

ILMA Compoundings - June 2020

Table of Contents for the Digital Edition of ILMA Compoundings - June 2020