July 27, 2021

Maui Needs a NPDES Permit; What’s Next for WOTUS?

Posted on July 27, 2021 by Seth Jaffe

Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility.  It is the first trial court decision applying the factors identified by Justice Breyer in the SCOTUS Maui decision. 

Judge Mollway found the most important factors to be what she considered to be the relative short distance from the discharge to the surface water (½ mile) and the relatively short time between the groundwater discharge and the surface water discharge (as little as 84 days and, overall, roughly a year).  Judge Mollway also thought that the sheer volume of the discharge ultimately reaching the surface water is important.

Obviously, ½ mile and one year are still significantly different than the time or distance involved in a discharge direct to surface water.  However, Judge Mollway, effectively put these numbers in context:

Because the Supreme Court knew it was dealing with movement through groundwater, it makes sense to assume that the Court expected the parties to be dealing with transport time measured in months. Notably, the Supreme Court set its extreme at “many years,” not at “many months,” and not even at one year or two years.

I’m confident that Judge Mollway’s analysis comports with the expectation of the SCOTUS majority.  The discharge from the POTW, even though not immediately abutting the shore, was the type of discharge that SCOTUS believed is intended to be encompassed by the NPDES program.

The real question is where do we go from here?  It at least sets a benchmark for other courts to utilize if they so choose.  If you’re less than ½ mile or so from surface water, and it takes less than a year or so for the discharge to reach the surface water – at least if the volume is significant – then it’s plausible to think an NPDES permit may be required.  However, the decision still largely leaves the jurisdictional determination on a case-by-case basis.

More importantly, the decision provides no guidance on the remedy.  What standards should apply?  What effluent limits should be imposed?  I can imagine a facility owner persuasively arguing that its discharge does not cause the exceedance of any water quality criteria, and thus that no effluent limits need be imposed.

In the meantime, what does this mean for legislative efforts to reform the Clean Water Act and efforts by EPA and the Army Corps to develop a workable regulatory definition of WOTUS?

My quick answer is that it will probably have no effect.  I know that experts from both sides of the aisle love to hate Breyer’s opinion.  I may be the only environmental lawyer around who thinks that it was a creative and appropriate effort to solve what has been an insoluble problem.  And I still think that judicial implementation of the SCOTUS opinion may be our best practical hope to get to a workable definition – even if no one’s happy in the meantime.  It’s not as though anyone was happy before the SCOTUS decision.

Three cheers for Judge Mollway.  Let’s see how this plays out.