Wetland Wednesday
April 29, 2020
April has been a pretty eventful wetland regulation month despite the COVID-19 closures. We had the Army Corps of Engineers effectively rescind the Nationwide Permit Number 12 for utility line crossings. This also brings into question the validity of the remaining Nationwide Permits. We also had the new Final Navigable Waters Protection Rule published in the Federal Register. The effective date of this Final Rule in June 22, 2020. This is the long awaited and highly controversial change to what is considered a Water of the US. Then just this past week the Supreme Court ruled on the jurisdictional nexus of groundwater with regards to Clean Water Act authority. This is a potential game changer for the new Navigable Waters Protection Rule.
On April 23, 2020 the US Supreme Court in a 6-3 ruling on the Maui/Clean Water Act Case, held that discharges to “waters of the United States” (WOTUS) via groundwater are covered under the Clean Water Act, “when there is a functional equivalent of a direct discharge.” In short, the federal government regulates groundwater pollutants that discharge into navigable waters including the territorial seas.
This case was about a sewage treatment plant in Maui, Hawaii. This wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Several environmental groups brought a citizens’ Clean Water Act suit, alleging that Maui was “discharging” a “pollutant” to “navigable waters” without the required permit.
The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” and granted summary judgment to the environmental groups. The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.”
Based upon the evidence in the case the Supreme Court ruled, “a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.”
In addition, the Supreme Court went on to clarify, “Although this interpretation does not present as clear a line as the other interpretations proffered, the EPA has applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope.”
Consequently, the case was remanded to the lower court’s decisions and vacated. Maui needs to get a permit in order to discharge sewage into the ground that ends up in the Pacific Ocean.
The 2020 Navigable Waters Protection Rule elimination of a groundwater nexus is somewhat upended by this case. The new rule goes out of its way to make it very clear that it is not intended to regulate groundwater. This Supreme Court decision seems to contradict the EPA and Army Corps position on this matter. The case does discuss that the state has a regulatory role in this type of discharge. However, it also underscores that the federal government has one too despite the new rule.
This case does reflect much of what Justice Keeney had suggested in his lone 2006 Rapanos opinion. The significant nexus concept seems to be tied to the “functional equivalent of a direct discharge” argument brought up by the environmental groups. I am sure that this will serve a precedent for future cases brought against the new Navigable Waters Protection Rule. However, come June 22, 2020 the new rule becomes the law of the land.