Vol. 52-1 Water Quality

Water Quality

Recission of Guidance Memorandum on County of Maui, Hawaii v. Hawaii Wildlife Fund

Background 

The Clean Water Act (“CWA”)[1] establishes the statutory structure for regulating the discharge of pollutants to the waters of the United States and setting surface water quality standards.[2] The National Pollutant Discharge Elimination System (“NPDES”)[3] permit program, created by the CWA in 1972, addresses water pollution by regulating point sources that discharge pollutants to the waters of the United States.[4] Under the program, the discharge of pollutants from a point source into a water of the United States is unlawful and prohibited unless an NPDES permit is authorized.[5]

Typically, an NPDES permit will specify an acceptable level of a pollutant or pollutant parameter in a discharge.[6] The decision whether to seek and obtain NPDES permit coverage resides with the owners or operators of facilities or systems; however, the failure to obtain coverage prior to a discharge exposes the owner or operator to potential civil or criminal enforcement and court orders mandating compliance with CWA permitting requirements.[7] 

County of Maui, Hawaii v. Hawaii Wildlife Fund

Until 2020, federal courts were divided on the question of whether a discharge of a pollutant subject to the CWA occurs when a pollutant is released from a point source and subsequently moves through groundwater, a nonpoint source,[8] before reaching a navigable water in the United States.[9] In other words, the issue was whether a CWA NPDES permit may be required for releases of pollutants from a point source that reach a jurisdictional water through groundwater.[10] 

In 2012, several environmental groups brought action against the County of Maui alleging that the county violated the CWA by discharging a pollutant to navigable waters without the required NPDES permit.[11] The county’s wastewater reclamation facility pumped treated sewage water into the ground through wells from which effluent traveled through groundwater to the Pacific Ocean.[12] The district court found that the county’s actions required an NPDES permit, since the pollution’s “path to the ocean is clearly ascertainable” from Maui’s wells into groundwater and to the ocean.[13] The Ninth Circuit court affirmed the decision on February 1, 2018, stating that pollutants coming from the wells were “fairly traceable from the point source to a navigable water” and that the CWA “does not require the point source itself convey the pollutants directly into the navigable water.”[14] 

In 2018, the County of Maui petitioned the U.S. Supreme Court for certiorari review, which was granted.[15] During oral arguments before the Court in November 2019, an attorney with the U.S. Department of Justice argued based on the Environmental Protection Agency’s (EPA) “Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Release of Pollutants From a Point Source to Groundwater” that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program, “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”[16] The Court rejected the interpretation the EPA articulated in the statement and delivered an opinion on this issue in County of Maui, Hawaii v. Hawaii Wildlife Fund.[17]

In its April 2020 decision, the Court explicitly rejected the Ninth Circuit court’s overly broad “fairly traceable test,” and held that an NPDES permit is required for a discharge of pollutants from a point source that reaches navigable waters after traveling through groundwater either when there is a direct discharge from a point source into navigable waters, or “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”[18] In other words, County of Maui clarified that an NPDES permit is required for a subset of discharges of pollutants that reach a water of the United States through groundwater—those that are the “functional equivalent” of direct discharges to jurisdictional waters.[19] 

The Court’s opinion cited seven factors to consider when determining whether an indirect discharge will require NPDES coverage because it is “functionally equivalent” to a direct discharge, including: (1) the transit time of a pollutant to a navigable water, (2) the distance a pollutant travelled to a navigable water, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable water relative to the amount of the pollutant leaves the point source and is discharged into groundwater, (6) the manner by or area in which the pollutant enters the navigable water, and (7) the degree to which the pollutant at that point has maintained its specific identity when it reaches the navigable water.”[20] 

Guidance Memorandum

Following the Court’s decision, the EPA issued a guidance document near the end of President Trump’s administration on January 14, 2021, entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program,” which explained how to apply the Court’s decision.^[21] The guidance only addressed discharges of pollutants that reach waters of the United States through groundwater and clarified the CWA permitting requirements for the indirect water pollution on a case by case basis.[22] The previous administration’s guidance placed the “functional equivalent” analysis into context within the existing NPDES permitting framework and identified an additional factor for authorities to consider when evaluating whether and how to perform a “functional equivalent” analysis: “the design and performance of the system or facility from which the pollutant is released.”[23] 

The EPA derived this additional factor from the NPDES permit application forms that contain inquiries concerning design and performance that are routinely considered by permitting authorities in the administration of the NPDES permit program.[24] EPA interpreted language in County of Maui to support the idea that the composition and concentration of discharges of pollutants directly from a pipe or other discernible, confined, and discrete conveyance into a water of the United States with little or no intervening treatment or attenuation often differed significantly from the composition and concentration of discharges of pollutants into a system that is engineered, designed, and operated to treat or attenuate pollutants or uses the surface or subsurface to treat, provide uptake of, or retain pollutants.[25] 

The addition of this factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a NPDES permit, thereby diminishing clean water protections.[26] Under the guidance, EPA decided that facilities were less likely to be the “functional equivalent” of a direct discharge for the following reasons: if they are designed and perform with a storage, treatment or containment system such as a septic system, cesspool or settling pond, if they are operating as a runoff management system, such as with stormwater controls, infiltration or evaporation systems or other green infrastructure, or if they operate water reuse, recycling or groundwater recharge facilities.[27] In other words, this means a release is less likely to be the “functional equivalent” of a discharge if it came from a facility or system that was designed not to release pollutants, but to store, contain, or treat them.[28]

Ultimately, under the guidance, if a system was designed to avoid discharges, and generally did so, that would weigh against a CWA violation even if there were some leaks into groundwater that eventually connected with a jurisdictional water.[29] Thus, the guidance had been derided by environmental organizations as creating loopholes for dischargers to evade CWA permitting requirements.[30]

Recission of Guidance Memorandum 

Upon taking office, President Biden signed Executive Order 13990 titled, “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” directing the EPA to “immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions” of the previous administration and to suspend, revise, or rescind those agency actions that “do not protect our public health and the environment.”^[31] Although a guidance document does not have the force and effect of law and does not bind the public in any way, through the issuance of one, the EPA intends to provide clarity to the public regarding existing requirements under the law or EPA policies.[32] Pursuant to this Executive Order, EPA conducted a review of the County of Maui guidance document.^[33] 

After reviewing the guidance document, EPA’s Office of Water issued a memorandum rescinding the guidance document on September 15, 2021, which was sent to the EPA Regions and Water Division Directors.^[34] The EPA explained that in addition to the input from the agency workgroup established to evaluate the guidance, the decision to rescind the guidance was informed by meetings with a broad range of stakeholders, who found that the guidance was inconsistent with EPA’s authority to limit pollution discharges to jurisdictional waters.^[35] With this action, EPA is preserving longstanding clean water protections.[36]

The document was rescinded for two primary reasons—substantive flaws and the lack of sufficient interagency consideration.[37] First, the agency is rescinding the guidance based on determining that the additional “design and performance” factor, is inconsistent with the CWA and the Supreme Court decision in County of Maui, because “the additional factor introduces an element of intent that is not reflected in or consistent with the County of Maui decision.” ^[38] Second, “the guidance was issued without proper deliberation within EPA or with [their] federal partners.”^[39]

The withdrawal will likely expand the number of discharges to groundwater that EPA finds are the “functional equivalent of a direct discharge from a point source into navigable waters” and therefore require a CWA permit.[40] The implication for rescinding this guidance document is that even if some design facilities or wastewater systems to avoid discharges, they still could face CWA liability for even small leaks of pollutants into groundwater that eventually connects to a navigable water.[41] The EPA’s Press Office issued a news release in which it indicated that the CWA and a straightforward application of the Supreme Court’s decision provide important protections for the nation’s water by ensuring that discharges of pollutants to groundwater that reach surface waters are appropriately regulated.[42] This action will help protect water quality in lakes, streams, wetlands, and other waterbodies.[43] 

The EPA also reiterated its position that the focus of the Court’s decision in County of Maui is on whether a permit is required to protect surface waters, and not to protect or regulate groundwater itself. [44] Therefore, the existence of a state groundwater protection program that may regulate a discharge does not obviate the need for NPDES permitting authorities to apply the “functional equivalent” factors that the Supreme Court identified in determining whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires an NPDES permit.^[45] Such language appears to be intended to address claims made by industry on-going litigation that discharges subject to regulation under state groundwater programs categorically that do not require NPDES permit.[46] Although the analysis will not extend to the state groundwater protection programs for this reason, the recission ultimately indicates that the new administration will take a broader view than the prior administration as to when discharges into groundwater are the “functional equivalent” of a discharge directly into a navigable water.[47]

Conclusion

The EPA stated that it is “evaluating appropriate next steps to follow the recission” of the guidance.[48] In the interim, consistent with past practice and informed by the guiding principles and factors specified by the Supreme Court in County of Maui, EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water is a “functional equivalent” of a direct discharge and therefore requires a permit under the CWA.[49] Moreover, for the time being, it will continue to make NPDES determinations on a case-by-case basis, which had long been agency practice prior to the issuance of the County of Maui decision.[50] EPA is committed to working with its state co-regulators, Tribes, and local partners to better protect water quality that is essential to public health and thriving ecosystems.^[51]

Niha Ali is a 3L at Texas Law and has been a part of TELJ since the Fall of 2019. She grew up in Katy, Texas and completed her undergraduate education in Philosophy with a Business minor at the University of Texas at Austin.

David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas.  David represents public and private clients in water quality, water rights, water districts, and water utility service matters.