On December 4, 2020, EPA signed a Federal Register notice with draft guidance that clarifies how the Supreme Court's County of Maui v. Hawaii Wildlife Fund decision should be applied under the NPDES permit program. On the one hand, the draft guidance notes that "EPA anticipates that the issuance of such [NPDES] permits will continue to be a small percentage of the overall number of NPDES permits issued following application of the Supreme Court's 'functional equivalent' analysis." The Agency also notably included an additional factor beyond the seven factors identified by the Supreme Court in the County of Maui case that, in the words of the Agency, "should be considered when performing a 'functional equivalent' analysis." That factor if the "design and performance of the system or facility from which the pollutant is released." The EPA noted that "[t]he design and performance of a system or facility can affect or inform all seven factors identified in Maui." A link to the draft guidance can be found here: https://www.epa.gov/sites/production/files/2020-12/documents/draft_ow_maui_guidance_document_-_12.2020_-_epa-hq-ow-2020-0673.pdf For more information from EPA, including information on the notice / comment period, click here: https://www.epa.gov/npdes/releases-point-source-groundwater Summary of Supreme Court's County of Maui Decision Under the Clean Water Act (the "Act"), a special permit is required if any pollutants are added from a "point source" to "navigable waters." 33 U.S.C. § 1362(12). The issue in this case was whether the Act "requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source," here, groundwater. In a compromise 6-3 opinion authored by Justice Breyer, the Supreme Court concluded that the Act requires a permit when "the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters." (emphasis added). This case centers on the County of Maui's wastewater treatment facility that filters and disinfects the sewage it receives then releases the wastewater into four onsite injection wells. The injection wells are long pipes into which the wastewater is pumped. The wastewater then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. It is undisputed that wastewater from these wells eventually makes its way into the Pacific Ocean via groundwater. On average, it took approximately 10 months for groundwater containing County wastewater to enter the ocean along approximately 2 miles of coastline. The injection wells in this case are "point sources", which are defined under the Act as any "discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, ..., from which pollutants are or may be discharged." Environmental groups sued, claiming the County needed a special permit for its injection of treated wastewater into the underground wells because the wastewater (which contains pollutants) eventually makes its way to the Pacific Ocean via groundwater, which is a nonpoint source. The Ninth Circuit found in favor of the environmental groups, concluding that a permit is required when "the pollutants are fairly traceable from the point source to a navigable water." The Supreme Court reversed and in his opinion, Justice Breyer pointed out that the issue in the case centers on the definition of the word "from" in the statute, and that while the word is "broad in scope, ... context often imposes limitations." Specifically, the majority concluded that the Act "requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge." In the majority's view, its holding reflected a "middle ground" between the two extremes posed by the parties. According to the Court, the County and the federal government's view - which advocated for a "bright line rule" that a permit would not be required if at least "one nonpoint source lies between the point source and the navigable water" - was too narrow and "would risk serious interference with EPA's ability to regulate ordinary point source discharges." To illustrate its point, the Court provided a hypothetical of a pipe which sends pollution directly into the ocean, which could then simply be moved back a few yards so that the pollution would need to travel the last several feet through groundwater to the ocean. The Court noted that it did not believe Congress "could have intended to create such a large and obvious loophole..." On the other hand, the Court explained that the environmental groups' arguments, which advocated for the Ninth Circuit's "fairly traceable" standard, would lead to "surprising" and "bizarre" results that Congress could not have intended. For example, the Court explained that under the environmental groups' test, a permit would be required "for pollutants carried to navigable waters on a bird's feathers," or, as a result of "the 100-year migration of pollutants through 250 miles of groundwater to a river." Furthermore, the Court explained that based on the statute's structure, Congress intended to leave "substantial responsibility and autonomy to the States" and the environmental groups' rule would seriously interfere with the "States' traditional regulatory authority," which is authority the Act "preserves and promotes." The Court pointed out that under the Act's framework, Congress left it to the States to regulate nonpoint sources. After coming to its middle ground approach, which the Court noted did not "clearly explain how to deal with the middle instances," the Court set forth seven non-exhaustive factors that may prove relevant in determining if a discharge is the "functional equivalent" of a direct discharge into navigable waters. Explaining that "[t]ime and distance will be the most important factors in most cases," the other five factors are: "the nature of the material through which the pollutant travels"; "the extent to which the pollutant is diluted or chemically changed as it travels"; "the amount of 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 pollution (at that point) has maintained its specific identity." The Court remanded to the lower court to apply the factors to this case. Justice Thomas, joined by Justice Gorsuch filed a dissent and Justice Alito also wrote a separate dissent. IMLA filed an amicus brief in support of the County with the Ninth Circuit, at the Supreme Court petition stage and at the Supreme Court merits stage. And while not adopting a bright-line rule that would have been easier to administer, we were very pleased that the Court rejected the Ninth Circuit's "fairly traceable test," which would have meant significantly increased liability for local governments. Thank you to Andre Monette with Best Best & Krieger and his team for their great work on our behalf in this case (which has stretched on for us for over 5 years). To read the full opinion, click here: https://www.supremecourt.gov/opinions/19pdf/18-260_5i36.pdf Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 M: (857) 753-3311 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 2021 Mid-Year Seminar<https://imla.org/seminars/>, April 23-26, 2021 in Washington, DC! IMLA's 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!