This week we are pleased to have a guest post from Robert S. Melvin, a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Attorney Melvin has over 20 years of experience counseling clients on environmental, health, and safety compliance, sustainability, emergency response efforts, site remediation, and development projects. A wide range of clients benefit from his services, including aerospace and other manufacturers, stone and aggregate producers, metal finishers, municipalities, educational institutions, and water and wastewater utilities.

In these days of working from home and managing countless other demands on our time, we offer this post to help you decide whether to add the latest Clean Water Act (CWA) cases and rules to your must-see legal watch list. Since its 1972 inception, the Clean Water Act has prohibited any unpermitted “discharge,” defined as “any addition of any pollutant to navigable waters from any point source.” For more than four decades, agencies and courts have struggled with this CWA liability trigger in various circumstances, as well as the CWA’s vague definition of “navigable waters” as “waters of the United States” (WOTUS).

On April 23, 2020, the U.S. Supreme Court in County of Maui v. Hawaii Wildlife Fund announced a standard for determining whether the CWA applies to water pollution reaching federally-regulated waters through groundwater. Just days before, the Environmental Protection Agency and Department of Defense published the Trump Administration’s final rule defining WOTUS, sparking yet another set of appeals in that line of CWA cases. The Maui decision and WOTUS ruling grow out of the same statutory text, but have different implications for manufacturers and other organizations.

Maui: SCOTUS’s “Functional Equivalent” Test for Indirect Discharges into Groundwater

Manufacturers and others using pipes, tanks, pits and other systems potentially releasing pollutants into the ground are more likely to be impacted by the Supreme Court’s CWA interpretation in Maui. These systems often fall within the Act’s definition of “point sources” – “any discernible, confined and discrete conveyance.”

In Maui, the Supreme Court sought a middle ground between previous rulings in the Fourth and Ninth Circuits, and a much narrower ruling from the Sixth Circuit, on the fundamental question – does the CWA prohibition against unpermitted pollutant discharges “from any point source” apply if the pollutants impacting a regulated waterbody do not come directly “from” the point source but instead reach the navigable water through groundwater?

The Court held that the CWA not only requires a permit when there is a direct discharge into navigable waters, but also “when there is the functional equivalent of a direct discharge.” While conceding that the circuit courts’ tests would be easier to administer, the Court found that the statute’s words “from any point source” demand a more flexible standard and reflect “Congress’ basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater.”

Navigable Waters Protection Rule: Trump Administration’s New WOTUS Definition

The second CWA drama to resurface concerns the scope of CWA-regulated “navigable waters,” defined vaguely in the statute as “waters of the United States.” Businesses affected by the WOTUS definition tend to be those that disturb wetlands or other small, isolated or intermittent waterbodies, such as natural resource extraction, excavation, and construction operations. After the Obama Administration revised the WOTUS rule in 2015, a series of legal challenges commenced, followed by the Trump Administration’s initiative to Repeal and Replace the 2015 WOTUS rule. But the roots of the WOTUS battles run much deeper than these recent conflicts and reflect interpretations that have been evolving since Congress adopted the statute without a clear WOTUS definition.

The Obama Administration attempted to codify many years of WOTUS rulemaking and litigation, including the “significant nexus” test proposed in a solo opinion written by Justice Kennedy in Rapanos v. United States. Accordingly, the 2015 rule defines these protected waters to include not only “traditional navigable waters,” but also wetlands and water features that “significantly affect the chemical, physical and biological integrity” of such waters.

As anticipated, the Trump Administration’s replacement rule follows Justice Scalia’s narrower plurality opinion in Rapanos, declaring that WOTUS status extends only to “relatively permanent, standing or continuously flowing bodies of water.” The 2020 rule thus limits CWA-regulated waters to territorial seas and traditional navigable waters (TNW), perennial and intermittent tributaries contributing surface flow to TNW in a typical year, impoundments of such jurisdictional waters, and adjacent wetlands physically touching jurisdictional waters.

Appeals of the 2020 WOTUS rule already have been filed in at least three U.S. district courts; litigation over the issuance and revision of the 2015 WOTUS rule also continues. The uncertain scope of the CWA’s WOTUS definition concerns many businesses with construction, excavation, extraction or other operations that disturb or discharge pollutants into wetlands and other water-related land features. The Supreme Court’s new “functional equivalent” test adopted for point source discharges reaching navigable waters through groundwater is more likely to impact manufacturers and other organizations using equipment that may release pollutants into the ground. But, the stakes are high regardless of how one is alleged to have triggered CWA liability.

To read a more detailed analysis of both the Supreme Court’s Maui decision and the Trump Administration’s new WOTUS definition, please click here.