Loyola University of Chicago School of Law, JD 2022
On January 14, 2021, the United States Environmental Protection Agency (“EPA”) issued a Guidance Memorandum (hereinafter “Memo”) addressing the recent decision of the Supreme Court of the United States in the case County of Maui v. Hawai’i Wildlife Foundation, 140 S. Ct. 1462 (2020) regarding the regulation of water pollution under the Clean Water Act (CWA or “the Act”). The Memo outlined how the Court’s recent ruling in the County of Maui applies to the National Pollutant Discharge Elimination System (“NPDES”) permit program created under Section 402 of the Clean Water Act (hereinafter “Section 402”). The intent of the EPA in publishing the Memo is to help clarify the effect of the Court’s ruling in County of Maui for owners and operators of facilities subject to the regulation of the CWA, the primary regulatory framework for governing water pollution in the United States. The ruling in County of Maui expands the types of discharge that are subject to the CWA’s regulatory permit program and illuminates the steps required of facility owners and operators to comply with that framework.
What is the National Pollutant Discharge Elimination System permit program?
Section 402 of the CWA addresses water pollution by regulating the discharge of pollutants from any point sources that enter navigable waters of the United States through the NPDES permit program. The Act defines “discharge of pollutants” as any addition of any pollutant to navigable waters to any point source. It further defines “point source” as any discernable, confined and discrete conveyance from which pollutants are or may be discharged and outlines a non-exclusive list of examples of point sources, including wells. Section 402 authorizes the EPA to issue NPDES permits, but it also authorizes states to submit their own NPDES permitting program to the EPA for approval and provides that the EPA shall authorize states to administer its own program unless its proposed program fails to meet statutory criteria. NPDES permits are issued for periods of five (5) years and subject to renewal for subsequent five-year periods. It is the responsibility of the owners or operators of a discharging facility to make the determination of whether a NPDES permit is needed, and if so to apply for and obtain a permit. Failure to obtain a permit prior to emitting discharge subject to the permit requirement constitutes noncompliance with the CWA and leaves owners/operators liable for civil or criminal penalties, and court orders mandating compliance with the CWA.
The Supreme Court of the United States’ ruling in County of Maui v. Hawai’i Wildlife Foundation (2020)
The issue addressed by the Court in County of Maui (2020) is whether a NPDES permit is required by Section 402 for discharge of pollutants from a point source that enter navigable waters through groundwater rather than discharging from the point source directly into the waters. The action was brought by environmental groups against the County of Maui’s Lahaina wastewater reclamation facility for failing to comply with the NPDES permit requirement. The facility discharges approximately four million gallons per day of partially treated sewage water into the ground through four wells. This discharge met all of the requirements for the permit program, but the sewage was discharged a half mile from the Pacific Ocean and traveled through groundwater into the ocean where it damaged wildlife and their ecosystem. The County argued that because the discharge traveled through the groundwater before entering the ocean their failure to obtain a permit did not constitute noncompliance.
The Court ultimately held that the CWA’s permit requirement under section 402’s NPDES program applies to direct discharge from a point source or the “functional equivalent” of indirect discharge. It recognized that the determination of whether indirect discharge qualifies as a “functional equivalent” of a direct discharge must be done on a case-by-case basis, and different facts may be relevant in different circumstances. However, the Court did outline a non-exhaustive list of seven factors that it found relevant to the determination, including transit time and distance travelled from the point source to the water, labeled the “functional equivalent” analysis (“FEA”).
The Functional Equivalence Analysis and compliance with the CWA
The FEA solidified the regulatory impact of the CWA and specifically the NPDES permit program by broadening the reach of the Act’s regulatory framework to provide further protection for U.S. waters from indirect pollution. However, in doing so it put further responsibility on those who must comply with its provisions. There are threshold conditions that must be met before a legal obligation to obtain an NPDES permit is triggered: (1) there must be (or will be) actual discharge of a pollutant into waters of the United States; and (2) that discharge must be from a point source as defined under the Act. It is the responsibility of owners and operators to determine if the discharge from their facilities meets these conditions and requires a permit. While the FEA expands the regulation of water pollution, the seven factor, case-specific, balancing test puts an additional burden on those owners/operators in making that determination, and the ambiguous nature of the test will require more facilities to undergo more costly and time-consuming inquiries. The FEA factors include the extent the pollutant is diluted or chemically changed and whether its specific identity has changed, which require in depth scientific analysis. Further, the FEA as the Court outlined it is very broad and even those who do undergo the analysis could reach a different conclusion than a court, possibly leaving them liable despite making efforts to comply. Ultimately, while the ruling will require owners/operators to take further measures and investments to ensure they are discharging pollutants in compliance with the Act, the rule is necessary for the CWA to effectively serve the regulatory purpose Congress intended and to protect aquatic wildlife and the habitats they rely on.