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How Changes to the Clean Water Act May Affect You and Your Industry
April 24, 2020


During April 2020, the U.S. Supreme Court, the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (USACE) and the U.S. District Court for the District of Montana ushered in sweeping changes to the Clean Water Act (CWA) applicability in the United States. The following information outlines each change to CWA applicability and enforcement and how such changes might affect you and your industry.

NPDES Permits May Be Required for Discharges into Groundwater

On Thurs., April 23, 2020, the U.S. Supreme Court broadened the requirement for National Pollution Discharge Elimination System (NPDES) permits to include some discharges into groundwater that are eventually conveyed to navigable waters in the case County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260 (U.S. April 23, 2020).  

The case arose from injections of wastewater into underground wells by Maui County, Hawaii. Those discharges mixed with groundwater that eventually intermingled with waters of the Pacific Ocean. NPDES permits were not traditionally required for such discharges. However, the 9th Circuit earlier held that such discharges would require a permit if the pollutants, once they reach navigable waters, are “fairly traceable” from the point source to the navigable water. No. 15-17447 (9th Cir. 2018).

The Supreme Court rejected the 9th Circuit’s “fairly traceable” standard. It also rejected the argument that NPDES permits are not required if a pollutant must travel through groundwater before reaching navigable waters. The Court instead held that an NPDES permit is required under the CWA for discharges of pollutants into groundwater that are functionally equivalent to direct discharges into navigable waters.

The Court articulated seven factors in its newly articulated “functional equivalency test” by which parties can determine whether an NPDES permit is required for discharges into groundwater or other non-point sources. They include: (1) transit time to the navigable water; (2) distance traveled between the source and the navigable water; (3) the nature of the material through which the pollutant travels; (4) the extent to which the pollutant is diluted or chemically altered as it travels; (5) the amount of pollutant entering the navigable waters relative to the amount of 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 the point it enters the navigable waters, has maintained its specific identity. 

This decision makes the assessment of whether an NPDES permit is required for discharges into non-navigable waters a multi-faceted, highly fact-based analysis. Discharges involving injection wells, septic systems and wastewater treatment operations, among others, may now be subject to additional permitting requirements under the CWA. Increases in citizen suits to enforce NPDES permitting requirements in such circumstances also are expected. 

The knowledgeable attorneys at Parsons Behle and Latimer stand ready to help you determine whether your discharge activities now require an NPDES permit as well as help you navigate any enforcement actions or litigation that arise from this Supreme Court Decision.

The Court’s decision is available here

Ephemeral Streams and Some Wetlands are No Longer Consider Waters of the United States

On April 21, 2020, the EPA and the USACE (collectively “the agencies”) published the Navigable Waters Protection Rule (the “New Rule”), to redefine “waters of the United States” (WOTUS) that are subject to CWA regulation. The WOTUS definition governs the agencies’ authority under all the CWA programs including the NPDES and dredge/fill permit and water quality certification programs.

 In 2015, the agencies promulgated a definition of WOTUS that expanded the scope of CWA regulation from the agencies’ prior implementation of that authority. The United States circuit courts inconsistently applied the 2015 WOTUS Rules, resulting in a patchwork regulatory regime. In 2019, the agencies repealed the 2015 WOTUS rule. 

The New Rule, effective June 22, 2020, limits CWA’s applicability to various types of bodies of water by, (1) removing the categorical inclusion of “interstate” waters in the WOTUS definition; (2) eliminating ephemeral waters from the scope of CWA jurisdiction; (3) altering the analysis for determining the existence of a tributary or adjacent wetland that might be a regulable water; and, (4) disclaiming the Rapanos v. United States “significant nexus” test that allowed waters to be regulated by their relationship with “similarly situated” waters in the watershed.

Litigation challenging the New Rule is likely (with notice letters already filed) and could alter, delay or halt implementation of the New Rule. Litigation could also result in a return to the post-2015 “patchwork” application of the CWA.

Parsons Behle and Latimer can provide experienced counsel to help navigate the regulatory landscape throughout the implementation process of the New Rule.

The 2020 WOTUS New Rule is available here.

NWP 12 May No Longer Be Used for Utility Projects Affecting Waters of the United States

On April 15, 2020, the U.S. District Court for the District of Montana issued an order vacating the USACE’s 2017 reissuance of the Nationwide Permit 12 (NWP 12), under which an array of utility projects affecting streams, rivers and other waters of the United States currently operate. 

NWP 12 authorized activities, including dredge and fill activities, to occur without undergoing more detailed CWA permitting processes if such activities were (1) required for the construction, maintenance, repair or removal of utility projects in “waters of the United States;” and (2) if the activity did not result in a loss of greater than half-acre of waters of the United States for each project. 

In 2017, USACE issued a Finding of No Significant Impact in its re-issuance of NWP 12, and it did not consult with relevant wildlife agencies about the impact that activities authorized under NWP 12 may have upon endangered species and critical habitat throughout the nation. The Northern Plains Resource Council and other groups challenged the re-issuance of the permit in the case Northern Plains Resource Council v. U.S. Army Corps of Engineers on the basis that USACE did not consult with wildlife agencies as required under Section 7 of the Endangered Species Act. No. CV-19-44-GF-BMM (D. Mont. April 15, 2020); 16 U.S.C. § 1536. 

The Court agreed with the conservation groups, holding that the 2017 USACE renewal of NWP 12 failed to sufficiently account for potential impacts to endangered and threatened species and critical habitat. As a result, the Court, (1) vacated the 2017 reissuance of NWP 12; (2) remanded the NWP 12 permit to USACE to conduct the required consultation under the ESA; and, (3) prohibited USACE from authorizing dredge or fill activities under NWP 12 until consultation processes are completed. 

As a result of this ruling, parties wishing to utilize NWP 12 for utility project stream crossings may need to obtain an individual or other alternative permit for each crossing, which could affect permitting timelines and costs. Parsons Behle and Latimer can provide experienced counsel to help you determine if a permit is necessary for your utility project, and to assist you through the permitting process to enable your project to proceed in a timely and cost-effective manner. 

The Court’s order is available here

To discuss these or other related issues, contact Lisa Kirschner by calling (801) 536-6649 or send an email to lkirschner@parsonsbehle.com, or call Cedar Cosner at (801) 536-6909 or send an email to ccosner@parsonsbehle.com or contact Megan Olmstead by calling (801) 536-6921 or send an email to molmstead@parsonsbehle.com.