Vol. 52-2 Natural Resources & Land Use

Natural Resources & Land Use

Updates on Effect of County of Maui Decision on CWA Litigation

Introduction

            The Supreme Court’s 2020 opinion in County of Maui v. Hawaii Wildlife Fund communicated a material change in the interpretation of the Clean Water Act’s application to wastewater pollutants. This article reviews the Court’s holding, describes subsequent administrative actions, and reviews recent litigation applying the Court’s holding in lower courts.

County of Maui and Functional Equivalent Test

In 2020 the Supreme Court issued an opinion in County of Maui v. Hawaii Wildlife Fund to determine whether a permit from the EPA is required where a pollutant originating from a point source enters navigable waters via a non-point source.[1] In the case before the Court, a suit was brought for Clean Water Act violations against the County of Maui’s operation of a wastewater reclamation facility.[2] The city’s facility was pumping treated water (the pollutant) hundreds of feet underground into wells that traveled through groundwater into the Pacific Ocean, a navigable water.[3] The court was faced with the issue that a narrow reading of the statute establishes a loophole circumventing the intent of the statute, since groundwater eventually leads to navigable waters.[4] However, too broad of a reading would require permitting in many cases Congress did not intend the EPA to regulate.[5] The court ultimately held that a permit is required when there is a direct discharge or where there is the “functional equivalent of a direct discharge.”[6] To assist in determining whether a discharge is a functional equivalent the court laid out seven factors to be considered: “(1) transit time, (2) distance traveled, (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 waters relative to the  amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the  navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.”[7] The Court noted that the first two factors of time and distance are likely to be the most important in a functional equivalent analysis.[8]

EPA Guidance Memorandums

On January 14^th, 2021, the Trump administration issued a guidance memorandum on the County of Maui decision. This memorandum is not legally binding. It added an eighth factor: “the design and performance of the system or facility from which the pollutant is released.”[9].  The Biden administration then rescinded the guidance on September 15^th, 2021, through another memorandum sent by EPA Assistant Administrator for the Office of Water, Radhika Fox.[10] The September memorandum found the January guidance’s addition of an eighth factor to be inconsistent with the Court’s opinion by introducing an inquiry into the intent of the accused polluter.[11] In addition, the September memorandum stated the EPA will engage in “site-specific, scientific-based evaluations” to determine if discharges meet the functional equivalent standard of County of Maui.[12]

County of Maui on Remand

Since County of Maui, cases involving the use of the functionally equivalent test it articulated have been fact-specific and often require the use of experts.[13] In County of Maui on remand, the District Court of Hawaii, determined that the county had violated the permit requirement of the Clean Water Act by meeting the functional equivalent standard.[14]  The facts the court found most persuasive were the short distance and transit time.[15] The distance was about half a mile from point source to the ocean.[16] The transit time from point source to the ocean had a minimum of 84 days and average of 14 to 16 months.[17] The court also noted no reconsideration was needed due to the inclusion an additional factor, the volume of the discharge, in its analysis.[18] The court did not give weight to the County’s argument that the nitrogen within the wastewater was diluted by the time it reached the ocean.[19] Instead of taking the county’s requested approach of measuring the nitrogen as the pollutant, the court considered the wastewater to be the pollutant.[20]

Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc. 

In the First Circuit, the Longwood litigation immediately felt the effects of County of Maui as it was remanded to comply with the Court’s ruling. The First Circuit vacated its November 2019 decision in Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc., and remanded it to be consistent with the County of Maui ruling[21]. The Longwood case on remand was never decided; it ultimate settled for $369,000 and a replacement of the wastewater treatment facility.[22]

Black Warrior River-Keeper, Inc. v. Drummond Co.

In Black Warrior River-Keeper, Inc. v. Drummond Co., the Alabama Northern District Court applied the County of Maui  functional equivalent test to discharges of acid mine drainage into the Locust Fork of the Black Warrior River to determine if Drummond required a permit.[23] The plaintiff bringing the case presented evidence showing “contaminated groundwater from the lower dam reaches the Locust Fork in as little as 1.5 to 4.4 days.”[24] In addition, the plaintiff was able to show a relatively short distance from the point source to the navigable water, due to the proximity of the lower dam and spillway to the Locust Fork.[25] The defendant Drummond presented no evidence to contradict this data provided by plaintiff.[26] Drummond unsuccessfully attempted to argue the volume of groundwater leaked from the site was an insignificant quantity and therefore would not require permitting.[27] The court granted the plaintiff summary judgment on the matter due to an inability to generate a genuine dispute on the time and distance factors of the County of Maui functional equivalent test.[28]

Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist.,

The Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist. case involves a scenario in which Big Sky District (defendant) collects treats water for treatment at its Water Resources Recovery Facility (“WRRF”), which is alleged to have polluted runoff flowing through a drain into the groundwater which then flows into the West Fork of the Gallatin River.[29] On February of 2022, the presiding judge in Cottonwood gave both parties several factual questions to be answered in thirty words or less to shed light on how the County of Maui factors apply to the case at hand.[30] After the responses to these questions were received the judge denied both parties’ motions for summary judgement as a question still exists as to whether the WRRF underdrain pipe contributes to the functional equivalent of a direct discharge.[31]

Parris v. 3M Co

The most recent case, Parris v. 3M Co is currently being decided in Georgia and is likely to hinge on the court’s ruling of whether the defendant (Trion) meets the functional equivalent test of County of Maui.[32] Still in the preliminary stages of litigation, Trion has yet to offer any explanation as to why their PFA discharges would not meet the functional equivalent test.[33] The opposing party has yet to produce any evidence, but alleges that Trion’s disposition of PFAs through the groundwater have entered Racoon Creek thereby violating the Clean Water Act.[34] The judge ruled against Trion’s motion to dismiss this matter.[35] As this case moves forward one can expect intense evidentiary discovery in line with similar County of Maui cases.

Jared Mezzatesta is a 3L from New Jersey. He studied Political Economy at the University of Michigan and is passionate about fair housing. He clerked for Weil Gotshal & Manges LLP. 

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.