On April 21, 2020, the Department of the Army (Corps of Engineers, Department of Defense) and the Environmental Protection Agency published “The Navigable Waters Protection Rule: Definition of ‘Waters of the United States.’ ’’  This rule replaces the previous Waters of the United States (WOTUS) rule.

Two days later, on April 23, 2020, the Supreme Court of the United States (SCOTUS) went in a different direction with respect to defining WOTUS under the Clean Water Act (CWA) when it ruled 6-3 in favor of an environmental group in County of Maui v. Hawaiʻi Wildlife Fund.  This ruling states that point source discharges to navigable waters through groundwater are regulated under the CWA under some circumstances.

We briefly discuss below both the Navigable Waters Protection Rule (NWPR) and the recent court decision.  These developments may have a significant impact on future CWA permitting requirements.

Navigable Waters Protection Rule

WOTUS has been discussed, litigated, and been the subject of innumerable papers and blogs (we discussed the new WOTUS rule in a January blog).  Interestingly, the final NWPR rule states that waters that are not regulated include “Groundwater, including groundwater drained through subsurface drainage systems…”

The Navigable Waters Protection Rule, or NWPR, limits those waters that are federally regulated and are, therefore, subject to permitting under the CWA.

With this final rule, are we finally done with WOTUS/NWPR?  Don’t count on it.  In fact, legal action is already underway.

NWPR Legal Proceedings

It was little surprise to learn that environmental groups rapidly announced legal action as they immediately express misgivings about the NWPR.  The Natural Resources Defense Council, on behalf of several environmental groups, filed a “Notice of Intent to Pursue Legal Action for Failure to Consult on the Navigable Waters Protection Rule as Required by Section 7 of the Endangered Species Act.”  The Center for Biological Diversity issued a release that stated, “Lawsuit Launched Over Trump’s Massive Rollback of Pollution Protections for Rivers, Wetlands Rule Threatens Millions of Acres of Wetlands, Hundreds of Endangered Species.”

In an interesting twist, and perhaps reflective of how contentious this issue has been, ranchers also filed legal action under the NWPR.  According to Progressive Farmer, “The new Navigable Waters Protection Act still leaves farmers and ranchers exposed to regulation of private property, an amended lawsuit filed in federal court on Monday alleges.”

As legal proceedings ramp up in hopes of changing the NWPR, a significant ruling about regulated waters and direct discharges was just decided by the SCOTUS.

Supreme Court CWA Ruling and Functional Equivalent

Just two days after the NWPR was final, a major SCOTUS CWA decision was announced.  This ruling may have far-reaching impacts on future permits.

How will the recent SCOTUS ruling affect future CWA permitting? (Photo Credit: Claire Anderson on Unsplash)

At issue in the County of Maui v. Hawaiʻi Wildlife Fund was a discharge of partially-treated effluent from the County into a well that eventually finds its way to the ocean.  Court documents state that approximately 4 million gallons of treated water are pumped into four wells daily.  The effluent travels about a half mile through groundwater and discharges into the Pacific Ocean.

The CWA lawsuit states that Maui was discharging a pollutant into navigable waters without a required permit.

SCOTUS Decision

From the SCOTUS blog, Lisa Heinzerling writes, “…the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is ‘the functional equivalent of a direct discharge’ from the source into navigable waters.  Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit’s judgment and remanded the case for application of the standard announced today.”

In delivering the opinion of the court, Justice Breyer said, “We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

The term functional equivalent may become a term of art as questions arise in the future about what is and is not a direct discharge.

We’ve had some experience on this “hydraulic connection” issue, as we provided expert support during the Rapanos Case – one of several US Supreme Court cases regarding WOTUS.

Figuring out if you need a particular environmental permit is often not straightforward, and with these recent regulatory and judicial developments, CWA decisions will undoubtedly remain a challenge.

If you have any questions or need assistance please contact me at 248-932-0228, Ext. 117.

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