Supreme Court Decision Creates New Standard for Clean Water Act NPDES Permits
/County of Maui v. Hawaii Wildlife Fund
A recent United States Supreme Court decision in the highly watched case County of Maui v. Hawaii Wildlife Fund, determined that requirements for National Pollutant Discharge Elimination System (NPDES) permits for point source discharges of pollutants do apply in certain circumstances to effluent that reaches waters of the United States via groundwater. This decision has potential implications for projects and facilities that dispose of wastewater through wells or infiltrate water that reaches groundwater.
Since 1972, the Clean Water Act (CWA) has protected the nation’s surface waters by strictly regulating the quality and quantity of point source discharges under the NPDES permit program. The U.S. Supreme Court’s ruling in County of Maui v. Hawaii Wildlife Fund further bolsters the regulatory authority of the CWA by classifying certain, previously unregulated discharges, as being the “Functional Equivalent” of a direct point source discharge to surface water and subject to the permit.
Case Background
The case focused on the activities of the Maui Lahaina wastewater treatment plant, which has been discharging significant quantities of wastewater into the local groundwater since the 1980’s. Although the discharged wastewater eventually made its way to the ocean, a fact the county did not dispute, the county did not consider the discharges to be regulated under the CWA because they were not made directly to a receiving surface water body.
What Does the Decision Mean for My Project or Facility?
In their appellate decision, the 9th Circuit Court of Appeals held, “At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly.” In other words, if your facility or business is currently making non-point source discharges that would normally require a permit if it were discharged to a lake, stream, river or other surface water body, you may be subject to regulation under the CWA.
What Exactly Is a Functional Equivalent?
Unfortunately, the definition of what constitutes a functional equivalent was not explicitly delineated in the decision. However, comments made during oral arguments suggest that regulatory applicability decisions will be based on the ability to clearly trace surface water contamination to a point source and proximate cause, and whether or not the polluter could have reasonably anticipated that wastewater discharges might eventually reach and contaminate a surface water body.
What Is a Proximate Cause?
Again, the decision is not clear regarding how great of a distance must be traveled and how great of a retention time is required to exempt a particular discharge from the CWA. Retention time and distance travel are, however, listed as important factors in determining regulatory applicability. Justice Breyer noted in his opinion that a discharge occurring 50 miles from a surface water body and taking many years to arrive there would likely not be subject to regulation under the CWA.
Is My Home Septic System Now Regulated Under the CWA?
No. The decision specifically mentions that home septic system discharges to the soil that are transported through groundwater to surface water bodies are not affected by this ruling.
The County of Maui v. Hawaii Wildlife Fund decision has multiple implications for wastewater and groundwater management projects that are not yet well defined. Permit determinations will likely be made on a case-by-case and state-by-state basis. If you may be discharging to groundwater without a NPDES permit, internal evaluation is recommended whether your current discharges would meet this new standard. KERAMIDA’s team of experienced professionals are ready to assist you in navigating the changing regulatory landscape. Please contact us or call (800) 508-8034 today to speak with one of our experts.
Contact:
Jodie Crandell, QISP, QEP, TOR
Senior Project Manager
KERAMIDA Inc.
Contact Jodie at jcrandell@keramida.com.
