In April 2020, the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund et al., 140 S. Ct. 1462 (2000), vacating the Ninth Circuit’s decision.  The appeals court had affirmed a district court’s finding of Clean Water Act (“CWA”) liability for the County’s alleged failure to obtain a discharge permit for subsurface releases of pollutants into groundwater that conveys pollutants to navigable waters.  In vacating the judgment below, the Supreme Court rejected the Ninth Circuit’s “fairly traceable” test and set forth a new standard for determining when a source needs an NPDES permit:  “the statute 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.”  Id. at 1468 (emphasis added).  In other words, “an addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.”  Id. at 1476 (emphasis added).

Recognizing that this approach “does not … clearly explain how to deal with middle instances,” the Court set forth “some of the factors that may prove relevant” in any given case: (1) transit time; (2) distance traveled; (3) the nature of the material through which the pollutant travels; (4) the extent to which the pollutant is diluted or chemically changed as it travels; (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source; (6) the manner by or area in which the pollutant enters the navigable waters; and (7) the degree to which the pollution (at that point) has maintained its specific identity.  Id. (emphasis added).  The Court made clear that its test should not be applied in a manner that “create[s] serious risks … of undermining state regulation of groundwater or … creat[es] loopholes that undermine the statute’s basic federal regulatory objectives” to provide “federal regulation of identifiable sources of pollutants entering navigable waters.”  Id. at 1477.  The Court also suggested that it did not anticipate its new test resulting in “unmanageable expansion” of the NPDES permitting regime.  Id.

Although no court has applied the County of Maui factors to the facts of a particular case, some groups have used the decision in attempt to expand the reach of the Clean Water Act’s NPDES permitting program.  For example, on August 5, 2020, a group sent a notice of intent to sue letter to owners of a golf course community for the community wastewater system’s release of pollutants to groundwater that migrated to surface waters about a half-mile away.  That same day, the group also sent a notice of intent to sue letter to a small town that operates a wastewater treatment facility serving 2,900 properties.  Although the group admitted in its notice that the facility has a “groundwater discharge permit” under state law, it claims that the town also needs an NPDES permit for releases to groundwater.  On February 16, 2021, the group filed a lawsuit against the town in federal court, seeking injunctive relief, civil penalties of up to $56,460 per day per violation, and attorneys’ fees.

These cases seek to expand NPDES permitting requirements to facilities that historically have not been subject to such requirements but were regulated under other programs (e.g., state groundwater and solid waste programs).  Such cases bring to mind the Supreme Court’s admonition in County of Maui to avoid “undermining state regulation of groundwater” and an “unmanageable expansion” of the NPDES program.  Indeed, in guidance issued on January 14, 2021, EPA confirmed that it did not expect that County of Maui would substantially impact the “overall number of NPDES permits” issued by permitting authorities by regulating the types of facilities at issue in these matters, which already are regulated under state groundwater programs. [1]

These issues bear watching as groups will likely look for additional opportunities to file citizen suits and expand the reach of the Clean Water Act.  In addition, the EPA under the new Biden Administration may attempt to address the issues through regulatory actions or further guidance.


[1] https://www.epa.gov/sites/production/files/2021-01/documents/final_ow_maui_guidance_document_-_signed_1.14.21.pdf.

 

As we have explained, environmental justice will be a central focus of the Biden-Harris administration. A recent Executive Order declares federal agencies “shall make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.” Both big and small, changes are coming at the federal level on permitting, rulemaking, enforcement, and other actions that will have a practical impact on corporations and communities. Continue Reading California Launches Updated Environmental Justice Screening Tool

On January 26, 2021, a coalition of advocacy groups and prominent asbestos plaintiffs’ experts launched two challenges to “Part 1” of the asbestos risk evaluation recently released by the United States Environmental Protection Agency (EPA).  EPA concluded in Part 1 that 16 of the 32 “conditions of use” analyzed pose an “unreasonable risk” to human health, but advocacy groups have criticized EPA for only addressing risks associated with chrysotile asbestos and excluding review of other fiber types.  Now, those groups have teamed up on a pair of legal challenges that could force EPA to revisit its Part 1 asbestos risk evaluation, which could delay risk management regulations. Continue Reading Advocacy Groups and Plaintiffs’ Experts Launch Two Challenges to EPA’s Asbestos Risk Evaluation – Are EPA Settlements Possible?

A discussion of the National Environmental Policy Act and related regulations and their implications for project development.

Under the National Environmental Policy Act (NEPA), federal agencies must determine if their proposed major federal actions (including permit authorizations for projects sponsored by private entities) will significantly affect the human environment and consider the environmental and related social and economic effects. This means that virtually any project that requires a federal permit or authorization may be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that may trigger NEPA review.

Continue Reading The Shifting NEPA Landscape and Implications for Project Development

As the Biden Administration settles in and begins to appoint its designees to key executive and administrative agencies, a series of policy objectives are coming into focus.  Chief among them is expanded attention and regulation in the ESG space regarding environmental, social and governance issues at American businesses. In this post, we survey the expected direction of these initiatives at, for example, the SEC, Department of Labor, and EPA.

Continue Reading A Preview of ESG Regulation under the Biden Administration

On January 28, 2021, and for the second time in a month, the Massachusetts Legislature passed historic legislation designed to holistically address issues associated with the effects from climate change.  Governor Baker has 10 days to sign it, veto it, or return it to the General Court with recommended amendments. Continue Reading Massachusetts Legislature Passes Landmark Climate Legislation…Again

Among the flurry of executive actions signed by President Biden last week on inauguration day was a presidential memorandum aiming to revise the regulatory review process.  Titled “Modernizing Regulatory Review,” the memo is directed at the heads of executive departments and agencies and has dual focuses that show the Biden Administration’s commitment to strengthening key tenets of regulatory review while enhancing the focus on equitable and other considerations in the process.  Though it garnered less attention than other actions issued simultaneously, this memo signals President Biden’s ambitious regulatory agenda and may have far-reaching effects that pervade the regulatory process. Continue Reading Presidential Memorandum Directs Evolution in Regulatory Review

On January 15, 2021, the Texas Commission on Environmental Quality (“TCEQ”) received approval to implement the National Pollutant Discharge Elimination System (“NPDES”) program for oil and gas discharges. [1]  Generally, as a result of this approval, applicants for NPDES permits for produced water, hydrostatic test water, and gas plant effluent will only require a single TCEQ authorization rather than authorizations from both the Railroad Commission of Texas (“RRC”) and the U.S. Environmental Protection Agency (EPA) as previously had been required. [2] Continue Reading TCEQ Receives NPDES Program Authorization for Oil and Gas Discharges

Recently certain policy advocates have suggested that the Federal Energy Regulatory Commission (FERC) should attempt to revitalize the Federal Power Act Section 216 “backstop siting” authority as a means of addressing climate change.  Their objective is to facilitate the construction of more long-haul transmission lines from areas with excess renewable generation, so zero-emitting generation can reach more markets. Continue Reading Resurrecting Federal “Backstop Siting” Authority for Interstate Transmission

Incident Response Tip: Responding to a COVID-19 Incident

The COVID-19 pandemic remains a health crisis in the United States and presents many unique challenges for employers.  Many employers have already experienced COVID-19 cases among employees, while others may face such challenges as cases of the virus continue to rise.  Though unique in some respects, the response to a COVID-19 incident has parallels to an industrial accident response, which involves developing and timely deploying the right resources. Continue Reading Tips For Minimizing Liability When Responding to a COVID-19 Incident