April 23, 2020
In this alert:
- Supreme Court rules on Maui County groundwater case
- Senate passes smaller stimulus package; House expected to vote today
- WOTUS rule effective June 22; Lawsuits anticipated
Supreme Court sets new test on groundwater discharges to navigable waters
On April 23, the U.S. Supreme Court released a decision in a long-awaited case, County of Maui, Hawaii v. Hawaii Wildlife Fund, on whether a pollutant that travels through groundwater to a “water of the U.S.” requires a federal permit. In a 6-3 decision, the justices said that a permit is required “when there is a direct discharge from a point source into navigable waters or when there is a functional equivalent of a direct discharge.” This decision may be relevant for water supply operators, wastewater treatment, flood control and stormwater management agencies that own and manage water storage and treatment infrastructure.
The case in question involves Maui County, Hawaii’s practice of injecting millions of gallons of treated sewage wastewater into four underground wells. The county has been using this process since the mid-1970s and previously had not been required to obtain a Clean Water Act (CWA) permit. However, Hawaii Wildlife Fund challenged this approach, arguing the county should be required to obtain a CWA National Pollution Discharge Elimination System (NPDES) permit since partially treated wastewater eventually discharges into the Pacific Ocean through a groundwater conduit.
The court agreed, with the caveat that “time and distance” are equally important. The example used in the decision states that when a “pipe emits pollutants that travel a few feet through groundwater…,” a NPDES permit is clearly required. However, the decision also states, if a “pipe ends 50 miles from navigable waters…” and pollutants “travel with groundwater” to “navigable waters…many years later,” a NPDES permit is likely not required.
The case has been sent back to the 9th Circuit Court instructing them to use the new test to determine liability in the case.
- To read the Supreme Court’s decision, click here.
- To read the amicus brief in support of Maui County submitted by California Water Agencies, California Association of Sanitation Agencies, International Municipal Lawyers Association, Idaho Water Users Association, National League of Cities, National Association of Counties, National Water Resources Association, WaterUse Association et al., click here.
Senate passes smaller stimulus package; House expected to vote today
Earlier this week, the U.S. Senate passed a $484 billion supplemental coronavirus (COVID-19) relief bill to primarily replenish the Paycheck Protection Program (PPP), expand testing and provide funding to hospitals. The bill now moves to the House who is expected to vote on the bill today.
Highlights of the Paycheck Protection Program and Health Care Enhancement Act (H.R. 266):
- Provides $310 billion to the PPP program and directs $60 billion of PPP to be given to small lenders and community-based banks “to serve the needs of unbanked and underserved small business and nonprofits.” PPP was created in an earlier stimulus package to provide loans to businesses and certain nonprofits to keep employees on the payroll. The original $349 billion allocated was tapped out in two weeks.
- $10 billion for the Emergency Economic Injury Disaster Loan Program
- $75 billion to hospitals dealing with funding shortfalls from coronavirus
- $25 billion to develop and roll out coronavirus testing
- $11 billion to states and local governments and tribes to run local COVID-19 testing and related activities.
While the bill does not provide direct funding to state and local governments and related entities, Democrats hope to address this in a fourth expected stimulus package to address economic challenges due to COVID-19.
WOTUS rule effective June 22; Lawsuits anticipated
On April 22, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) final “Navigable Waters Protection Rule,” to revise the definition of “waters of the U.S.” (WOTUS) within the Clean Water Act (CWA), was published in the Federal Register. The rule will take effect on June 22, 2020, 60 days after its publication.
The term “waters of the U.S.” has been around since the 1890’s but in 1972 was added to the CWA to differentiate which waters fall under federal v. solely state permitting authority. However, due to several Supreme Court decisions, the definition has become murky, leading to confusion in the field about the scope of federal authority.
In 2015, the Obama administration came out with a controversial new WOTUS definition that was immediately challenged in the courts. As a result, late last year almost half of the county was under the 2015 WOTUS rule and the other half under the pre-2015 rule.
Under the final definition, four categories of waters are federally regulated:
- Territorial seas and traditional navigable waters;
- Perennial and intermittent tributaries to those waters;
- Certain lakes, ponds and impoundments; and
- Wetlands adjacent to jurisdictional waters.
Under the rule, tributaries are in if they are perennial (run year-round) or are intermittent (run consistently at certain times of the year and contribute surface flow to a traditional navigable water (i.e. river) in a typical year. A typical year is based on a 30-year rolling average of weather conditions. Ditches are generally out unless they meet the tributary definition and are relocated/constructed in a tributary or were constructed in an adjacent wetland and contribute perennial or intermittent flow to a traditional navigable water (TNW) in a typical year.
In layman’s terms, if your ditch is wet 365 days a year, and connects to a TNW, it may be jurisdictional. If your ditch is wet on a seasonal basis and connects to a TNW, it may also be jurisdictional. If your ditch is only wet during rain events, regardless of duration, it is likely not jurisdictional. Since the term “seasonal” differs across the country, many of these determinations will be made via watershed.
The 340-page rule also includes 12 categories of exclusions, i.e. those waters not considered WOTUS, including ephemeral features, groundwater, certain ditches, prior converted cropland and waste treatment systems.
This rule is part of the two-step process that the Trump administration made to withdrawal and rewrite the 2015 WOTUS rule. Step one—to withdrawal the 2015 rule and recodify the 1986 WOTUS regulations—became effective on December 23, 2019. The Navigable Waters Protection Rule, once effective, will replace the December 2019 WOTUS definition.
As with the 2015 WOTUS rule, there are expected legal challenges. The Center for Biological Diversity, Waterkeeper Alliance and Center for Food Safety plan to file immediate lawsuits in the courts, which may lead to split court decisions. This may result in a situation where half of the county is under one rule and the other half under a different rule. As a result, it is likely that the U.S. Supreme Court will have to weigh in sooner rather than later on the fate of the 2020 WOTUS rule.