Implementing high court ruling shows fluidity of CWA discharge permits

The question of whether the Clean Water Act requires a permit for a discharge has long been settled law -- except when it's not. When the discharge is to a water body that does not meet the traditional definition of navigable (i.e., a body of water that is capable of being used for commercial navigation), courts and the U.S. Environmental Protection Agency have struggled to find consistent positions. Both have adopted a variety of standards, and with each change, have left dischargers vulnerable to enforcement.

Most recently, the EPA issued draft guidance interpreting the U.S. Supreme Court's April 2020 decision in County of Maui v. Hawai'i Wildlife Fund, 140 S. Ct. 1462, 1467 (2020). In that case, the court held that a discharge to groundwater requires a permit when the discharge is the functional equivalent of a direct discharge from a point source into navigable waters. In early December 2020, the EPA attempted to further clarify the functional equivalent standard with its draft guidance. Though that draft guidance is succinct, it leaves a number of questions outstanding.

A fundamental issue is the scope of the Maui decision. Both the Supreme Court and the EPA specifically state that neither the Maui decision, nor the EPA guidance, fundamentally change the permitting program of the National Pollutant Discharge Elimination System, known as NPDES. To that end, the EPA has taken a straightforward, limited reading of the Maui decision with the draft guidance.

The basic criteria for when a discharge to groundwater requires a Clean Water Act permit is when: The pollutants need to actually reach surface waters that are subject to regulation under the Clean Water Act; the pollutants need to be discharged from a point source in the first place; and the pollutants need to flow through the groundwater in a manner and at a speed that is the functional equivalent of a direct discharge.

All of that is firmly based in the Supreme Court's decision. There is no expansion of the rationale, but also no narrowing. In fact, the draft guidance does not actually provide much guidance on what constitutes the functional equivalent of a discharge.

The Supreme Court's opinion listed seven factors that would demonstrate whether a discharge is a functional equivalent of a direct discharge. The opinion states that time and distance traveled remain the most important factors. Changes to the chemistry of the water on its journey will also be important. But there is not a lot beyond that.

The draft guidance also introduces a new factor -- system design -- and in so doing introduces an intent aspect to the analysis. Was the facility operator intending to discharge to surface waters through groundwater or was it an incidental aspect of the operation? Was the discharge to the surface water actually trying to be avoided or mitigated? These are not determining factors on their own, but it helps paint the picture of whether a discharge to groundwater is the functional equivalent to a direct discharge to surface waters.

By leaving the draft guidance general, the EPA has recognized that there is no one-size-fits-all answer for permitting discharges that go through groundwater. However, the Supreme Court's decision, and now the draft guidance, leave dischargers in a difficult position. It is not entirely clear when a discharger may need a Clean Water Act permit. There are factors that may be weighed, but discretion will remain with EPA, and ultimately the courts in the event that a permit is challenged or an environmental advocacy group pursues enforcement under the act.

Importantly, the draft guidance may never be finalized -- which is one reason why the EPA may have issued such a limited document. The period for public comment on the draft guidance closed on Monday. It is very unlikely that EPA would be able to publish the document as final guidance before the Jan. 20 presidential inauguration.

While the incoming Biden administration may revoke or modify the draft guidance, the chances of that happening are low considering there are no controversial measures that limited the scope of the Maui decision or the Clean Water Act's permitting program. Milquetoast guidance is less likely to raise the ire of the incoming administration and less likely to be retracted and reissued. Even if it is objectionable, a limited policy may fall to the bottom of the priority list.

In that sense, the Maui draft guidance is likely to avoid the fate of the definition of the term "waters of the United States," -- another Clean Water Act football that has been tossed back and forth between Republican and Democrat administrations over the past eight years. The EPA can be expected to revisit the Trump administration's definition of the term. The Maui guidance is different enough that it should not get caught up in that effort.

So what remains? Dischargers, regulators and the environmental advocacy community are left to fight out how to apply the factors from the Maui case. The next phase of that effort is likely to remain with EPA. The incoming Biden Administration will need to decide how to address the Draft Guidance. How and whether they do that will be as much a political decision as it is a legal one. 