Clean Water Act Update: Maui, NWP 12 and WOTUS

aci environmental consulting has been monitoring recent developments related to Section 404 of the Clean Water Act. Updates on three specific topics are included below.

The Supreme Court has recently issued a ruling as to whether a wastewater treatment plant operating near Lahaina, Maui that injects its affluent into the lava below the plant after treatment is subject to the Clean Water Act (CWA). The County had rejected that claim and an environmental group sued to mandate CWA authorization. The environmental group cited a study by local academics which identified pollutants associated with the plant nearby in the Pacific Ocean (i.e. navigable waters). 

The 6-3 court opinion written by Justice Stephen Briar remands the decision back to the 9th Circuit with guidance to determine if the wastewater injected underground as a part of the wastewater treatment is the functional equivalent of a direct discharge from the point source directly into navigable waters.  

The 9th Circuit had previously ruled that the pollution was a fairly traceable discharge from the plant to the ocean, and thus, a functional equivalent. However, while the Supreme Court remanded the case to the 9th Circuit to review, it also established some guidance for if and how the lower court may rule on the question of a functional equivalent. aci is currently examining that guidance as to if and how a future lower court decision may affect regulatory actions on the functional equivalent nexus. 

The Maui decision could expand the regulatory authority of the CWA by requiring the applicant to review any discharges not only to traditional jurisdictional waters of the US but also whether there may be any underground connection to jurisdictional waters even if traditional jurisdictional waters are not being directly impacted by the discharge on the property. 

aci env consulting will be monitoring this decision as well as two other actions related to CWA regulatory changes that may have a major effect on how jurisdictional waters of the US are regulated. The first action was a decision by a federal District Judge in Montana regarding a pipeline that had been authorized under CWA Section 404 Nationwide Permit 12 and the other is a Final Rule on what classification of waterways can be regulated through CWA Section 404.

In the CWA Nationwide Permit 12 case, the federal judge halted the pipeline project because the US Army Corps of Engineers had failed to adequately address species protected by the Endangered Species Act as a part of its Nationwide Permit 12 authorization. The judge then suspended Nationwide Permit 12 authorization process then applied the ruling for the entire country effectively suspending the Nationwide Permit 12 authorization process in the United States. More recently the judge has clarified the suspension to only apply to oil and gas operations under Nationwide Permit 12. We understand that various U.S. Army Corps of Engineers Districts are developing policy on the changes currently.

The second action was the issuance of a Final Rule that limits the previous administrative process for determining navigable or jurisdictional waters of the United States (WOTUS). aci consulting has previously informed you of this decision through an earlier announcement. Environmentalists are calling this Final Rule the Trump Rule. It eliminates approximately a quarter to a third of the previously regulated watersheds by, for the most part, excluding most of ephemeral streams from the regulation. The Trump Rule (like the Obama administration rule before it) is not consistent with Justice Kennedy’s ruling in Rapanos and has and will be challenged by states and environmental groups in federal court.

These three actions have the potential to dramatically change how we currently view CWA Section 404 authorizations. The Maui decision could dramatically expand the area subject to CWA regulations and the type and amount of research and information necessary for review and authorization by federal and state agencies. The CWA Section 404 Nationwide Permit 12 decision has the potential to shut down all current and future oil and gas pipeline construction projects in the United States. The Trump Rule could eliminate up to one-third of waterways currently considered WOTUS and subject to review and authorization by federal agencies.

aci will be closely monitoring these three actions and provide updates to you as new developments occur.