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EPA Seeks Input on What Constitutes The “Functional Equivalent” Of A Direct Pollutant Discharge

on Thursday, 14 December 2023 in Environmental Pulse: Vanessa A. Silke, Editor

Following the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, the EPA plans to regulate some indirect pollutant discharges like direct discharges.

On November 27, 2023, the U.S. Environmental Protection Agency (“EPA”) published a request for public comments on how EPA should implement the U.S. Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020).  The case held that some indirect discharges could require a National Pollutant Discharge Elimination System (“NPDES”) permit if they are the “functional equivalent” of a direct discharge.

The Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., requires a NPDES Permit before any person or entity may discharge “pollutants”[1] through a “point source”[2] into “waters of the United States.”[3] 33 U.S.C. § 1342. “Discharge” means “any addition of any pollutant to navigable waters from any point source . . . [or] to the waters of a contiguous zone or the ocean from any point source.”  33 U.S.C. § 1362(12). 

That broad statutory language was the court’s focus in County of Maui.  The county’s wastewater reclamation facility injected treated wastewater into the ground.  Injected wastewater mixed with groundwater and then discharged into the Pacific Ocean.  Several environmental groups, including the Hawaii Wildlife Fund, brought suit alleging that the County of Maui was “discharging” pollutants into “navigable waters” without the requisite NPDES permit.  The County of Maui defended on the grounds that this was not a direct discharge and thus no permit was required. 

The court, however, held that the County of Maui’s actions were a “functional equivalent” of a direct discharge and thus did require an NPDES permit.  140 S.Ct. at 1468.  While the court did not define “functional equivalent,” it addressed the factors to consider in determining whether an indirect discharge is the functional equivalent of a direct discharge.  These factors include:

    • Transit time;
    • Distance traveled;
    • Nature of the material through which the pollutant(s) travel;
    • Extent to which the pollutant is diluted or chemically changed as it travels;
    • Amount of a pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
    • The manner by or area in which the pollutant enters the navigable waters; and
    • The degree to which the pollutant maintained its specific identity.

Id., at 1476-77 (cleaned up). 

The EPA’s comment period closes on December 27, 2023.  The EPA will use public input to guide its implementation of the functional equivalent test. 

Attorneys at Baird Holm LLP specialize in various subject matter areas including administrative, water, and environmental law.  Please do not hesitate to contact us if you have questions about this case or any related matter.

[1] “Pollutants” means “dredged spoil, solid waste, incinerate residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”  33 U.S.C. § 1362(6). 

[2] “Point source” means “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  33 U.S.C. § 1362(14). 

[3] We recently analyzed EPA guidance on what constitutes “waters of the United States” here.

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