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The Clean Water Act: An Overview

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The Clean Water Act: An Overview

In this introduction to the Federal Water Pollution Control Act (the “Clean Water Act”), 33 U.S.C. § 1251, et seq., we will address the Clean Water Act’s genesis and discuss how the Act has evolved since 1972. We will cover the legislative history, permitting requirements, and key definitions under the Clean Water Act. We will also discuss the recent decisions expanding the protections offered by the Clean Water Act and what this means for the environmental law practitioner.

Transcript

- Hello everyone. My name is Alexander Lehrer and today we will be discussing the federal Water Pollution Control Act also known as the Clean Water Act. In this introduction to the Clean Water Act, we will address the acts genesis and discuss how the act has evolved since its passage in the 1970s. We will cover the acts legislative history, permitting requirements, and some of the key definitions that have become the focal point of litigation over the years. We will also discuss the recent decisions that have expanded the protections offered by the Clean Water Act and what this means for the environmental law practitioner. The goal of today's lecture will be to discuss the history, objectives and implementation of the Clean Water Act, address key litigated terms, including navigable waters and point source under the Clean Water Act and the interpretation using legislative history and well-established case law and provide key practice tips for environmental attorneys filing or responding to Clean Water Act litigation. So as previously mentioned, my name is Alexandra Lehrer and I'm a partner at the law firm of Trenk Isabel Siddiqi and Shahdanian in Livingston New Jersey, where I focus on environmental law with a specific concentration in complex environmental litigation, primarily involving emerging contaminants and natural resource damages, as well as regulatory matters regarding site remediation. I am an experienced attorney in matters involving the Clean Water Act, CERCLA, and the New Jersey Spill Compensation and Control Act also known as the Spill Act. I am licensed to practice law in the State of New York, the State of New Jersey and the United States District Court for the District of New Jersey. I'm a member of the Justice Stewart Pollack Environmental Inn of Court the New Jersey State Bar Association, the New Jersey Environmental Law Section, the New Jersey Special Committee for Renewable Energy, Clean Tech and Climate Change. And I'm also a member of the American Bar Association. I am also a contributor to the New York, the New Jersey environmental Law Handbook, and have lectured extensively about the Clean Water Act before the New Jersey State Bar Association on several occasions. So having said all that, let's get into the program. Now, the Clean Water Act was enacted in 1972, but I think it's important to understand water regulation before 1972. And to have a discussion about , water regulation looked like before the Clean Water Act itself. So as a starting point, we are gonna go back all the way to 1899, which is one of the first instances of water regulation in the United States. So the first piece of legislation that is important for our purposes is the rivers and harbors appropriation act of 1899. The citation is 33 USC section 401. And this is also known as the Refuse Act. And the Refuse Act is still in place. And it authorized the permit program to permit and protect navigable waters of the United States in the development, construction, and excavation of our nation's harbors. Now the Refuse Act prohibits the unauthorized obstruction or alteration of any navigable waters of the United States. And that's a quote from section 10 of the RHA or the Refuse Act the 33 USC section 403. And the law explicitly states that, "it shall not be lawful to excavate or fill or in any manner to alter or modify the course, location, condition or capacity of any port, roads that haven, harbor, canal, lake, harbor of refuge or enclosure within the limits of any breakwater or the channel of any navigable water of the United States, unless keyword, unless, the work has been recommended by the chief of engineers of the core of engineers and authorized by the secretary of war prior to the beginning of any excavation." So what does this mean? A plain reading of the Refuse Act demonstrates that this was not really aimed at preventing water pollution or ensure ensuring clean drinking water or protecting the flora, fauna or any ecosystems or even minimal human health standards. Instead it's plain that this is an act to protect industry and to protect maritime security. It's important for us to look at the year in which the Refuse Act was enacted, 1899 was a time of great industry in the United States. It was a time of maritime might expansion and world growth. And with that in mind, the government was less concerned about protecting our waters for philanthropic purposes. I think they were more interested in preventing the dumping of materials that might impede navigation in industry itself. Waterways at this time continue to be used as a place to dispose of waste and substantially more pollutants for being discharged into nation's waters as a great, at a great array than the waters could absorb. So this was one of the key pieces of legislation that was in place up until about 1948, which is an extensive period, a substantial period of time. During that time you have world war I, you have world war II. So during this time, clearly there's an immense amount of industrialization. There is war production going on and prior to world War II, specifically states and municipalities took steps to deal with water pollution. But once the war broke out, war production really took precedent. And essentially put these efforts on hold. This is evident in bodies of water throughout the United States, such as the lower Duwamish waterway, which was a vital waterway for war production, specifically for ship building and aircraft production. We see this throughout the United States as well on the east coast. So the goal here in the United States, wasn't really protecting our nation's waters. The goal was to win the war in any cost, which we did, but the environment at home suffered immensely as a result of that. So world war II ended in 1945, which brings us to the next piece of legislation, the federal water pollution control of 1948. Following the second world war, the foundational legislation, setting the groundwork for what we know to become the Clean Water Act began to take shape. The 1948 act provided "state and local government with technical assistant funds to address water pollution problems, including research." And this is a direct quote from the congressional research services. And the 1940 act permitted courts to grant relief for pollution after considering the economic feasibility of abatement of the pollution. What's important to note here is that the 1948 act makes little to no mention of federal involvement, goals, objectives, limits, or guidelines on water pollution, the federal government here instead allowed states and local governments to handle water pollution pretty much as it hit done before the war. So the water quality act of 1965 was, the environmental movement began to start taking shape in the 1960s with the pollution of waterways and the air from over industrialization. The 1965 act provided for the adoption of federal water quality standards for interstate waters. The 1965 act was very limited in scope and ambiguous. It was very ambiguously worded with regard to ascertaining when a discharge of a contaminant was in violation of the act standards. So we see these three pieces of legislation from 1899 to 1965. And it's clear that the federal government is taking a hands off approach to maintaining the clean water of the United States. So why was the Clean Water Act enacted? You know, it's obvious that this was a response to contamination, disposal, and ineffective response to combat pollution by the federal government in previous legislation. For the first time ever in the 1960s and the 1970s, we see public outcry in response to manmade, natural disasters following the second world war, for instance, there's the Cuyahoga river fire. This was in, this happened in 1969 in the state of Ohio, the Cuyahoga river, it bisects the city of Cleveland and like many urban centers located on navigable waterways, Cleveland became a major manufacturing center in the Midwest. And as a result became heavily impacted by industrial contamination. The river became so contaminated with pollution, primarily petroleum products that it caught on fire at least 13 times, beginning as early as 1868 with the most devastating and while documented fire occurring in 1969. Some say that the Cuyahoga river fires were the start of the environmental movement in the United States, spawning the not only the Clean Water Act, Clean Air Act, but also the EPA itself. So other than the Cuyahoga river, we also had very high levels of bacteria, dangerous bacteria in the Hudson river, in New York, massive fish kills in the state of Florida, many of which are still happening today. So we have this public outcry and the environmental movement is starting to take shape. And that brings us to 1972 with the enactment of the federal Water Pollution Control Act. This is the Clean Water Act that we know today. It's been changed multiple times. It's been amended multiple times since the 1972, but the foundational document was signed into law in 1972. And the primary goals included, responding to public outcry and awareness of environmental issues. This came to the forefront once manmade environmental catastrophes gained traction in the headlines. Congress took note and in 1972 passed an amendment to the federal Water Pollution Control Act of 1948. And as amended in 1972, the law became known as the Clean Water Act. The amendment was intended to "restore and maintain the chemical, physical, and biological integrity of the nation's waters." This can be found at 33 USC section 1251. Now, generally the Clean Water Act forbids the addition of any pollutant from a point source to navigable waters without the appropriate permit from the environmental protection agency, the Clean Water Act is designed to restore and maintain the chemical, physical, and biological integrity of the nation's waters. In order to meet this objective, the Clean Water Act prohibits the discharge of any pollutant by any person and defines a discharge or a pollutant as any addition of any pollutant to navigable waters from any point source. Now the Clean Water Act defines a point source to be any discernible combined and discrete conveyance, including, but not limited to any well from which pollutants are or may be discharged. And this can be found at section 1311A and section 1342 A1. So as a brief summary, this can be distilled by asking ourselves what did the Clean Water Act actually do? And you know, what was the real purpose and what did it it hope to accomplish? The Clean Water Act established the structure for regulating pollutant discharge into waters of the United States, which had not been present prior to 1972. It authorized the USEPA to establish pollution control programs and pollution standards for waste water and industry. It set water quality standards and surface water for known contaminants, and it made it illegal to discharge contaminants into a navigable body of water from a point source without first obtaining a permit under federal oversight. Now, this is important because here we have the federal government actually requiring their own permission rather than kind of punting it to state and local officials. They're actually asking for discharges to get a permit before they discharge any contaminant or any affluent into bodies of water. And lastly, the Clean Water Act gave primary responsibilities and rights of states to prevent, reduce, and eliminate pollution and to prevent to plan the developments and of use of land and water resources. And specifically, this can be found at 33 USC section 1251B. So now that we've kind of introduced the Clean Water Act itself, I think it would be important to start getting into the definitions that really shape the Clean Water Act and set it apart from previous pieces of legislation enacted by the federal government. And with that, I think the first definition to tackle would be waters of the United States. I think it's important to start with waters of the United States or rather navigable waters, because this is one of the more settled areas. And it wasn't initially, this was probably the most litigated and most contentious definition within the Clean Water Act. Now the Clean Water Act defines navigable waters or waters of the United States to mean waters of the United States, including the territorial seas. And this could be found at 33 USC section 3627. So this begs the question, what are waters of the United States? And the legislative history of the act is important for, to kind of flesh out the details of what waters of the United States was really meant to be. Now looking at the legislative history, the house report from 1972 explains that navigable waters is one term that the committee was reluctant to define as navigable waters can kind of be a general term. And this is direct quote, "the reluctance was based on the fear that any interpretation would be read narrowly. However, this is not the committee's intent. The committee fully intends that the term navigable waters be given the broadest possible constitutional interpretation, unencumbered by agency determinations, which have been made or may be made for administrative purposes." So this is immensely important. It's 1972 and Congress here is trying to give the largest cast of largest possible umbrella or the largest possible net on what a navigable water can be. And they're saying it outright that it's the broadest possible constitutional interpretation. They want this to cover everything under the sun, at least that's my reading of it. And this is important because prior to this, you're not really getting a definition of what a navigable water is or what a clean water is or water to the United States really is. And obviously now that the act has been, it's been put into law, it's been signed, here come the court cases. And you know what? Now that we have a very broad definition, the court cases are going to try and specify what is and what isn't. Now, one of the first cases that involves the judicial interpretations of waters of the United States or navigable waters was the natural resource defense council versus Callaway. And that citation is 392F supp 685. And that's out of the District Court for the District of Columbia. In this case, the enter of DC brought an action against the army Corps of engineers and the EPA. The court held that Congress by defining the term navigable waters, per purpose of the federal Water Pollution Control Act amendments, or the Clean Water Act, they meant this to be the water to the United States, including the territorial seas, and it asserted federal jurisdiction over the nation's waters. What's key here is that they're saying to the maximum extent, permissible under the commerce clause. As used in the water act, the term is not limited to the traditional tests of navigability. So the court is essentially saying you don't need to be in a boat and go from point A to point B on a river. And if you can't do that, then it's not considered a water of the United States. This does not involve navigability. This does not have to do with the ports. This does not have to do with canals. This just has to do with bodies of water. This is streams. This is rivers. This is lakes. They're giving it the maximum extent. They're saying that this maximum extent standard really just emphasizes the congressional intent in drafting the Clean Water Act itself. So one of the next big court cases is United States versus Riverside Bayview homes, inc citation 474, US 121. This decision expanded the definitions of waters of the United States. In this case, the court of engineers brought an action to ensuring the owner of property from filling in wetlands, without permission from the federal government. So this case involves wetlands. This is not a navigable water that, in the traditional sense, like we said earlier, you really can't, this isn't a river. This isn't a stream. This isn't a Creek. These are wetlands. You know they're shallow. You can't really put a boat on them and go from point A to point B. So it it's an important distinction here. So the court is essentially being asked, our bodies of water that are not in fact, navigable, such as wetlands considers waters of the United States and thus covered under the Clean Water Act. And the answer under Riverside Bayview is overwhelmingly, yes. The court stated, "the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that is reasonable for the core to interpret the terms waters to encompass wetlands, adjacent to waters as more conventionally defined. And following the lead of the environmental protection agency the core has determined that wetlands adjacent to navigable waters do not rather do as a general matter play a key role in protecting and enhancing water quality." And that is at 8133. The court went on to say that, "in view of the breadth of federal regulatory authority contemplated by the act itself and the inherent difficulties of defining precise bounds to regulatable waters, because ecological judgment about the relationship between waters and their adjacent wetlands provides an inadequate basis for a legal judgment that adjacent wetlands may be defined as waters of the act. So here we have another expansion and of waters of the United States and navigable waters. It's not just creeks. It's not just streams. It's not just rivers. Now we have wetlands as well. So we are making the navigable waters of the United States even broader than what we fundamentally understand waters to be. So the next case is solid waste agency of North Cook County versus United States army Corps of engineers citation 531, US 159. This is a 2001 case involving isolated waters. So we should look at isolated waters. We should consider them more as lakes, ponds, things that aren't really navigable. They don't have a direct, they don't have direct access to a river or rather to a sea or ocean, not really navigable in the sense that, they can reach the sea. So this case involved the consortium of municipalities that sued the United States army Corps of engineers, and they were challenging the core's exercise of jurisdiction over abandoned sand and gravel pits on which consortium planned to develop disposal sites for non-hazardous solid waste and the denial of a Clean Water Act permit for that purpose. And here the court in 2001 kind of put their foot down and they... This is the first time really seeing a limitation on the Clean Water Act. And the court held that extending the definition of navigable waters under the Clean Water Act to include intrastate waters used as a habitat in this instance, by migratory birds exceeded the authority granted to the core under the Clean Water Act and therefore an abandoned sand and gravel pit containing ponds used by migratory birds was not subject to the chorus jurisdiction under the Clean Water Act. And the last case I'm going to discuss about navigable waters is US versus Rapanos. And this is a 2006 case. Citation is 547, US 715. In this case, the federal government brought an enforcement action alleging that developers and their wholly owned companies were illegally discharging film material into protected wetlands in violation of the Clean Water Act. And having heard arguments in this case, justice Scalia writing for the majority held at the term navigable waters under the Clean Water Act refers to water as found in streams, oceans, rivers, lakes, and bodies of water forming geographical features, but that does not encompass transitory puddles or ephemeral flows of water. So essentially what Scalia is saying here is that tributaries or very, very small, tiny little creeks that have very little basis of going anywhere are not considered as navigable waters or a water of the United States. Now here, it's important... I'm gonna give a little bit of a practice tip is that for those litigating Clean Water Act cases, the term navigable water or waters in the United States, that language of the Clean Water Act is pretty much well settled law at this point. And really isn't as litigated as it used to be. The Clean Water Act when it was first enacted that was really the first thing that was attacked under the law was what qualifies as a water of the United States. And that seems to be pretty well settled at this point. The new area for litigation purposes seems to be point source, which we will discuss later on in the lecture. So now that we have discussed navigable waters and the term waters of the United States, I think it's a good time to move on to the permitting process as it pertains to point source under the Clean Water Act. So the permitting process under the Clean Water Act is known as a national pollution, pollutant discharge elimination system permit, or a NPDES permit and section 301 A prohibits the discharge of any pollutant by any person from any point source into navigable waters, except if they have a national pollutant discharge elimination system permit, or a NPDES permit, N-P-D-E-S. And this can be found at 33 USC section 1311 A and section 301 A. Now to comply with these sections, a discharger can obtain permits through either the clean water act permit program under section 402 or the dredged or fill material program under section 404. So for today, we're gonna discuss section 402 and under section 402, the Clean Water Act requires that any operator of a point source be required to obtain a permit through the National Pollutant Discharge Elimination System or the NPDES program, essentially a NPDES permit limits what pollutants may be emitted by a discharger, and it also establishes necessary treatment steps to limit pollutant discharge. So as a practitioner, as a legal practitioner, NPDES permits are essential for any manufacturer or potential discharge of contaminants. As a practitioner and an advocate for your client, any discharge from a point source to a navigable water should be permitted under federal regulations, and you should be advising your client that, obviously they can't just discharge into a body of water. They're going to have to obtain federal approval and likely state approval as well. States tend to have their own NPDES program. I know in the state of New Jersey, it's called in NJPDES permit, N-J-P-D-E-S. But yes, this is something that you should be looking into to advise your clients if they are in the manufacturer or industrial areas. So with this in mind, I think we need to discuss what a point source actually is as it's discussed, not only in the act itself, but specifically in the national pollutant discharge elimination system permit section. Now the Clean Water Act defines a point source under section 502 of the Clean Water Act to mean any discernible, confined and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged. Now, when you think of it, the basic point of a point source makes sense, in essence, it's, you need to consider that it's essentially a pipe, from a fundamental point of view, you can consider it a pipe, discharging toxic sludge into a river or the ocean. That's probably the easiest picture to paint, but what happens when a discharge releases contaminants onto soil, which leaches into groundwater traveling to a navigable body of water, or you have a release of contaminants that aren't really coming out of a pipe they're coming out of a well or they're leaching. And then they're reaching a navigable body of water that way it's a little more ambiguous and it requires traditional interpretation. Now, as I said earlier, the point source definition seems to have taken, been at the forefront of litigation for the past several years with the Clean Water Act more so than the other areas, because of that, I'm going to go into a little bit of detail and probably start the beginning for a very important case that was decided in 2020, called the county of Maui versus Hawaii wildlife. And that was the Supreme court case. The citation is 140 Supreme court 1462 or 140 US 1462. And this was heard on April 23, 2020. So in the county of Maui case, the petitioner, the county of Maui operates a wastewater reclamation facility that collects sewage from the surrounding area. They partially treated it and they pumped the treated and wastewater through four wells, hundreds of feet underground. So you can see, this is a little different than the typical pipe, discharging sludge to a navigable water. Here we have wells that are injecting waste water, you know, hundreds of feet underground. And that's why this case is, it stands out from other point source cases. So it's, this is an expansion of what a point source would typically be. So this effluent amounting to about 4 million gallons each day was then traveling a further half mile or so through groundwater to the Pacific Ocean. And, so we have this facility it's about half a mile from the ocean. There is no creek. There is no river from the facility itself that is allowing contaminants to go from the site, the facility to the ocean. There is essentially just soil. Think of it as just soil from the industrial plant to the ocean itself, here, though, there is an underground river, you have groundwater that was traveling beneath the facility and traveling to the Pacific Ocean. And in 2012, several environmental groups, including the Hawaii Wildlife Fund, they brought a citizen suit under the Clean Water Act against the county of Maui, claiming that the county was discharging a pollutant to navigable waters, namely the Pacific ocean without the permit required by the Clean Water Act. And that permit as we previously discussed was a NPTES permit. That approved that the hydraulic connection between the groundwater and the ocean existed, the environmental groups relied upon what's known as a tracer dye study. So essentially they're taking dye, they're inserting it into the discharge contaminated water, and they're waiting to see where it gets discharged to and where it shows up. And so the discharged water, which was being released onto the soil and in these wells, these injection wells was finding its way into the Pacific ocean and the environment, the groups relied on this study, and the study indicated that 64% of the contaminated water pumped into the injection wells made its way to the Pacific ocean within about 84 days after being placed into the wells. So 84 days later, they're seeing this dye show up in the Pacific Ocean, and they're claiming that there was a direct connection between the discharge point or the point source and the Pacific ocean. So plaintiffs in this case argued that the county's injection wells will truly point sources since past EPA studies using the dye study had showed it possible to trace the discharge from individual wells to the ocean. The plaintiffs also argued that reclaimed water, which can possess higher levels of bacteria and other microorganisms that seep into the ocean that led to the spread of algae blooms near Maui shores, and in could impact the health of coral reefs , aquatic and mammalian life and humans that live near the shore. Hearing arguments, the United States District Court for the District of Hawaii held that because the path to the ocean is clearly ascertainable the discharge from the injection of wells into the nearby groundwater was, "functionally one into navigable water" and thus required an NPTES permit. So the court is essentially saying that because of the tracer dye study, the path to the ocean was clearly ascertainable. They were a able to see that the wastewater was being injected into the ground. The groundwater was then carrying the affluent from the facility and it was ending up in the ocean. So they said, it's clearly ascertainable. They were seeing it. They could see it with their eyes, the data was showing it. And that groundwater was essentially acting as a water, a navigable water of the United States. You know, we, you can't, obviously you cannot navigate groundwater. The boat analogy that I had used previously does, falls on its face here. It sinks immediately. Groundwater is clearly it's underneath the ground. It's an underground river. And the district court siding with the plaintiffs here is saying that groundwater is now considered a navigable water of the United States. So I was expected in this case, the county appealed the district court's decision, and the county appealed to the ninth circuit, which also ruled in favor of plaintiffs in 2018 and the ninth circuit's decision drew on Rapanos, which we had previously referenced before, as an opinion, that was drafted by justice Scalia. Justice Scalia, ready for the plurality suggested that permits would be required even for point source pollutants that do not emit directly into covered waters, but pass through conveyances in between. The court claimed that the plain language of the Clean Water Act supported the requirement that the discharge from the wastewater plant be subject to permit. They held that the Clean Water Act required a permit when pollutants were fairly traceable to the original point source. And this was a novel test for the Clean Water Act. It rejected two standards proposed by the county and the EPA. In this specific case at the Maui plant, the ninth circuit in footnote, three, noted that the pollutants from the wells to the ocean that resulted in pollution concentrations above the minimus levels were fairly traceable and thus would need a permit under the Clean Water Act. Now, the ninth circuit concluded in a very interesting quote, which I will state here. They stated that, "at the bottom, this case is about preventing the county from doing indirectly, that, which it cannot do directly." So the court is essentially acknowledging a loophole here that the county was trying to take advantage of, ground water is not discussed in the Clean Water Act. It's... We've always discussed navigable bodies of water. We've always discussed point sources as being a conveyance as a pipe, a man-made object, you know, anything of the sort. And now we have groundwater being designated as a water of the United States or a navigable body of water or a navigable water rather. So the ninth circuit is closing that loophole saying the county can't get away with what they're doing. They're essentially dumping water, treated affluent contaminated water into the Pacific ocean by injecting it into the ground. And regardless of the fact that they're injecting it into the ground, it's still making its way to the Pacific ocean. Clearly there's an nexus here and they can't get away with it. So after the trial court and the appellate court decisions, the EPA took a stance on the groundwater issue in 2019, and they issued a guidance document entitled interpretive statement on application of the Clean Water Act, national pollutant discharge elimination system program to releases the pollutants from the point sources to groundwater. And this is a, it's an involved paper, but to distill the main purpose of the guidance document, the EPA asserted that the Clean Water Act does not cover discharges to ground water or discharges from non-point sources contrary to the ninth circuit's 2018 holding. So on the one hand, we have the courts, both the district court and the ninth circuit court saying that groundwater is a point. So our Senate is a navigable water under the Clean Water Act. And then we have the EPA taking a stance here in 2019 under the Trump administration. They're saying that the Clean Water Act does not cover these types of discharges to ground water, and it's doesn't require Clean Water Act permission. So the county will be permitted in this particular instance to continue doing what they're doing and discharging to ground water, despite the fact that it's making its way to the Pacific ocean. So following this, following the ninth circuit's decision and the guidance document, the county of Maui expectedly, they appealed the ninth circuit's opinion and the Supreme court granted cert. Now I remember following this case and this was a very big environmental case. I mean,I remember following this while it was going on from the district court and we were waiting for the Supreme court to make a decision here. I remember having a Clean Water Act case that I wanted to bring. And we were essentially waiting for this holding to come down before we could do any filing, because it was going... The law throughout the country, throughout the district courts and the appellate divisions was... There was a divide. Did this count as a point source or didn't it? And the Supreme court was, going to be the deciding vote here. So after hearing oral argument, in this case, the Supreme court in its review of the nine circuits decision stated that the Clean Water Acts words reflect Congress' basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the state's longstanding regulatory authority over land and groundwater. So they say that in addition of a pollutant, according to the court, falls within the statutory requirement, that the addition be from any point source, when a point source directly deposits pollutants into navigable waters or one that discharge reaches the same result through roughly similar means. So the Supreme court held that the Clean Water Act requires a permit when there is a direct discharge from a point sourced into navigable waters, or when there is the functional equivalent of a direct discharge from a point source into navigable waters. Now, in clarifying what constitutes a functional equivalent of a direct discharge. The court explained that time and distance are the obvious and important factors here. By way of example, the court states that where a pipe ends a few feet from navigable waters and the pipe amids pollutants that travel those few feet through groundwater or over the beach, the permitting requirement clearly applies. Conversely, the court stated that if the same pipe ends 50 miles from the navigable waters and the pipe, amids pollutants the travel with groundwater mix with much other material and end up in navigable waters only many years later, the permitting requirements likely do not apply. The court further explain that weather pollutants are rising at navigable waters after traveling through groundwater are from a point source, depends upon how similar to or different from the particular discharge is to a direct discharge. Now, recognizing that there are too many potentially relevant factors that could be determinative of whether a particular groundwater discharge is the "functional equivalent" of a direct discharge, navigable waters, the court articulated a number of factors here, including transit time, the distance traveled, the nature of the material through which the pollutant travels, the extent to which the pollutant is diluted or chemically changed as it travels, the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, the manner by, or area in which the pollutant enters the navigable waters and the degree to which the pollution at that point has maintained its specific identity. Now, the court explained that time and distance will usually be the most important factors, but also cautioned that the standard depends heavily on the facts of any given case and additional factors may be relevant to the analysis. The Supreme court also anticipated that subsequent decisions by district and appellate courts, as well as administrative permitting decisions and rule makings will over time give more substance to the functional equivalent standard as articulated in the county of Maui decision. So the court here rather than making a decision about the permitting requirements for the county, remanded the case back down to the district court. And they did this in a sense to kind of test the water, so to speak on the factors that they came up with and the district court applying those factors and the facts of that case to the factors that they came up with. So once this case was remanded back down to the district court, following the Supreme court's holding in that case, the EPA issued a January 21, 2021 guidance document entitled applying the Supreme court's county of Maui versus Hawaii wildlife fund decision and the Clean Water Act section 402 national pollution discharge elimination system permit program. So this is a 2021 guidance document. We have a new administration in place, and this guidance document essentially reduced the clean water protections by creating a new factor for determining if a discharge of pollution from a point source through ground water that reaches a water of the United States is the functional equivalent of a direct discharge to such water. The guidance identified the design and performance of the system or the facility from where the pollutant is released as an additional factor to be considered by regulated entities and permitting authorities and determining whether a NPTES permit is required for the pollutant. Now, this factor is in addition to the seven other factors that were identified in the Maui decision, it's also important to acknow... So the of Mai decision, you know, we sent back to the district court and we have a motion for summary judgment that comes up and the court issued its holding and established that the functional equivalent standard, you know, be remanded and the case be heard back in the district court to apply the standard to the facts of the county of Maui decision, and the court analyzed each factor. The district court rather analyzed each factor in the following way. So the first one we can look at is transit time and the district court characterized the tracer dye study as indisputably demonstrating the relatively rapid flow of significant quantities of pollutants from the site to the ocean. The distance traveled, the county's expert found that the wastewater travels from the site to the ocean at a minimum of 0.3 to 1.3 miles. And it is an undisputed fact, the site is 1.5 miles from the ocean. This is the evidence that the court considered and concluded that with the available data, even with diffuse flow, the wastewater likely travels a relatively short distance through groundwater and such a distance favors requiring the permit. Now the third factor, the nature of the material through which the pollutant travels, in the county of Maui matter, the waste water traveled through a porous aquifer and encountered saline and brackish water, the wastewater mixed with ground water and then flowed horizontally and vertically into the ocean through the aquifer. So in short, unlike water flowing through a pipe or a discrete conveyance that we imagine in our head, the waste water is mixing with other waters and is flowing through rock and other substances. So we were not dealing with a homogeneous substance here. This is mixing with other materials and then making its way to the Pacific ocean, which would likely complicate the formula that the Supreme court had come up with and would probably be antithetical to a permit in this particular instance, in this particular element, unlike the first two. Now moving off of the third point out to the fourth, the extent to which the pollutant is diluted or chemically changed as it travels clearly, here, we have a very porous aquifer. It's interacting with saline and brackish water. The county's expert on pine chair that 31 pounds of nitrogen per day were being released into the ocean at the north and south sea groups, which is a significant reduction from what would've been expected without a filtering mechanism. And even if much of that pollutant has been diluted or otherwise removed, a significant amount of pollutant is still entering the ocean. And the court drew all inferences in the county's favor. As you know, you're required to do under a motion for summary judgment and therefore viewed the significant reduction as indicating that this factor weighs in the county's favor. The fifth factor, the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source. In this particular instance, there was no dispute that 100% of the waste water from the site was being discharged into the ocean. We saw this with the tracer dye study, you know, the water was being discharged from the facility and we were seeing it several weeks later in the Pacific ocean. Further, the court noted that no parties dispute the fact that the resulting waste water remains polluted, even if it ended up being less polluted and all the waste water ended up in the ocean, regardless of how it is polluted, it's still making its way into the ocean. And so this factor weighs in favor of requiring the permit. So then we have the sixth factor or the sixth element that the Supreme court came up with in the county of Maui, the manner by, or area in which the pollutant enters the navigable waters. The court had said that the parties agreed that some of the wastewater entering the ocean through identified sips with their remainder of the wastewater, entering the water through other means, including diffuse flow . Here, the district court concluded that there are a number of ways, the waste number of ways that the waste water could enter the ocean and noted that this factor did not add much in relation to the other factors and gave this no additional weight. So here we have an instance of the court kind of, making its own standard here, not its own standard, but more of its own interpretation. It's saying, okay, these are all these factors exist. We can kind of pick and choose what is more important than the others. And this will probably be happening more and more often now that this is now in the district court's favor or in their realm rather. Now the seventh factor, the degree to which the pollution at that point was maintained in specific had maintained its specific identity. The district court held that there was no dispute that the wastewater undergoes some change as it flows from the site to the ocean. However, in this case, the 2013 tracer dye study indisputably established that the wastewater from the wells can still be identified. And even if the wastewater that reached the ocean from the wells contains the lesser levels of pollutants, it still maintains it, its specific identity and therefore required or favored rather requiring a permit. In addition, to the seven factors noted the court explains that these factors are not necessarily the only factors relevant to a determination of whether waste water from the wells is the functional equivalent of a direct discharge into navigable waters. So we have the district court kind of taking the Supreme court's words right out of its mouth and saying, okay, there are other factors here besides the seven that SCOTUS came up with and other additional factors that the district court mentions is the volume of waste water reaching navigable waters, the amount of pollutant entering navigable waters, relative to the amount of the pollutant that leaves the point source. They also mention the impact on the ecosystem, which is one of the first times we're seeing this element where we're actually looking at the environment itself. You know, we're not just, this is not a sterile approach that, we're just looking at these definitions. We're actually looking at the impact on nature and the ecosystem wildlife flora, fauna. And they're saying the impact on the ecosystem, the Clean Water Act was designed. They're recognizing that the Clean Water Act was designed to minimize harm to navigable waters and their ecosystems. And they also mentioned for a third additional factor, the balancing of factors. So this is clear when you see whenever we discussed factor six, which was the manner by area in which the pollutant entered the navigable waters, the district court doesn't give this a lot of weight, you know, in comparison to the other six factors that are there of the seven, they say this one really isn't that important. So we see a balancing already in the district court's decision. So here we have the first application of the functional equivalent standard. But I do not think that this is gonna be the last one. This was a very important case. It was one among many. This is the one that was granted cert, we're going to start seeing, we have the skeleton for the functional equivalent standard. Now we're gonna start seeing quarts, starting to put some meat on the bones here, and they're gonna start defining functional equivalent standard using these, this basic framework, looking at all these factors and creating the body now of what a functional equivalent actually is. So it's anticipated that subsequent decision by district court and appellate courts, as well as administrative permitting decisions and rule makings will over time give more substance to the functional equivalent standard articulated in the county of Maui decision. So the point source definition and specifically the county of Maui functional equivalent standard is gonna be heavily litigated in the future. I don't, think this is going away anytime soon, you know, unlike waters of the United States or navigable waters, which is it's been litigated in the past. It's well defined at this point point source and functional equivalent I think are gonna be, it's gonna be the next realm of litigation for environmental law and by involving the Clean Water Act. And now that the functional equivalent standard has been set by the Supreme court, which is obviously the law of the land, it's gonna fall in the states now in the lower federal courts to implement the standard articulated by the county of Maui decision. And, from a practice point of view, I would, you know, this is the starting point. The county of Maui decision is a very important case. And from an advocacy point of view, I would continue to pay attention to this line of cases in the future, as we're gonna start getting more information and more standards and on what a functional equivalent actually is and what a point source can be. So to summarize, we have gone over the history objectives and implementation of the Clean Water Act, the reasons why it was enacted, you know, we talked about the immense amount of environmental contamination that was taking place prior to 1972. That's not to say that it hasn't stopped since 1972. It's just regulated significantly more than it was. And, you know, we saw why it's being regulated, why the legislation was necessary. We have addressed litigated terms, including navigable waters and point source under the Clean Water Act and how they've been interpreted by the courts. And we've provided a little bit of environmental tips for practitioners and responding to, or filing Clean Water Act cases. I would say that it's going to be very important for environmental attorneys to advise your clients about the evolving standards that are happening with the Clean Water Act. The county of Maui in particular is essential kind of shows how the standard is evolving. And, I think a lot of industry thought that they were kind of off the hook with not being near a body of water that clearly has gone away. If you're a mile away from a body of water, you could potentially still be liable under the Clean Water Act, if you don't have a permit and you are discharging a contaminant to the soil, sediments, anything like that, clearly it's possible here that liability can attach. So manufacturers, discharges, whatnot need to be aware of that. And so whether you are on the plaintiff's side and you have been... Your water source has been contaminated by a particular contaminant or discharge, there are clearly avenues of recourse that can be taken under the Clean Water Act. And if you're on the defense side, you know if you're representing a company that is engaging in industry with potential to be discharging, likely they're going to be needing a federal and state permit under the Clean Water Act, they're not going to be able to just discharge and forget about it. So with that in mind, that's going to conclude our summary and our overview of the Clean Water Act. My name is Alexandra Lehrer. Please feel free to contact me. Should you have any questions or we should discuss what was summarized earlier during this lecture. Thank you all for listening and be well. Thank you.

Presenter(s)

Alexander Lehrer
Partner
Trenk Isabel Siddiqi & Shahdanian, P.C.

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