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Biden administration will more often require permits for indirect discharges via groundwater

on Monday, 15 November 2021 in Environmental Pulse: Vanessa A. Silke, Editor

The Trump administration had limited application of County of Maui v. Hawaii Wildlife Fund, allowing some unintentional discharges to go without a permit.  That limitation is no longer in place.  

The U.S. Environmental Protection Agency (the “EPA”) recently rescinded its Trump-era guidance for indirect discharges of pollutants under the Clean Water Act (the “CWA”), 33 U.S.C. § 1251 et seq.  Section 402 of the CWA requires a federal permit whenever a person adds a pollutant to waters of the United States (“WOTUS”) from a point source.  But in an indirect discharge, the pollutant travels from a point source into groundwater first before reaching WOTUS.  For example, a manufacturer might discharge its waste into a treatment pond, causing the waste to then seep via groundwater into WOTUS. Under the Biden administration, a permit is now likely required for that discharge.

The U.S. Supreme Court interpreted the EPA’s jurisdiction over indirect discharges in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).  There, the lower courts had entered judgments against a county for its wastewater facility’s indirect discharge into the Pacific Ocean.  The county appealed.  The Supreme Court vacated the lower court’s decision and remanded, but also held that indirect discharges could trigger the CWA permit requirement if the discharge was “the functional equivalent” of a direct discharge. The Supreme Court’s opinion in County of Maui did not provide a bright-line rule. 

In lieu of a bright-line rule, the Court noted the following factors as relevant in a functional-equivalent test:

  1. transit time of the pollutant,
  2. distance traveled from point source to navigable waters,
  3. the nature of the material through which the pollutant travelled,
  4. the extent to which the pollutant is diluted or chemically changed as it travels,
  5. the amount of pollutant entering the WOTUS relative to the amount of the pollutant that leaves the point source,
  6. the manner by or area in which the pollutant enters the WOTUS, and
  7. the degree to which the pollution (at that point) has maintained its specific identity.

Id. at 1476-77.  According to the court, “[t]ime and distance will be the most important factors in most cases, but not necessarily every case.”  Id. at 1477.

Following that decision, the EPA, during President Trump’s last days in office, issued a guidance memorandum to “clarify” how it intended to apply the County of Maui decision.  The memorandum took a narrow view of the decision.  It recited the court’s seven factors and added an eighth: “the design and performance of the system or facility from which the pollutant is released.”  The memorandum also suggested that County of Maui did not require a permit for indirect discharges unless the discharger knew that its pollutants would ultimately reach WOTUS.

But under President Biden, the EPA issued a second memorandum rescinding the Trump-era memorandum.  In effect, the Trump-era memorandum’s limiting factors no longer apply.  Instead, the Supreme Court’s seven factors from County of Maui control, at least until the Biden Administration adopts a new rule or guidance.  State regulations may also apply.  This means that property owners with indirect discharges into WOTUS are at risk of an enforcement action unless they have an appropriate permit under the CWA. 

We regularly assist clients with the determination of permits required under the CWA, as well as state law.  We will provide updates as the Biden Administration navigates jurisdiction over indirect discharges.  Please contact us with questions about permitting for land use activities that may impact WOTUS.

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