CWA - Discharge

Question 1

Discharge of a Pollutant - Definition

Answer 1

• “any addition of any pollutant to navigable waters from any point source”
• pollutant much broader than CAA - doesn’t require a finding of harm first

Question 2

Point Source - Definition

Answer 2

• any discernible, confined and discrete conveyance
• includes pipes, ditches, channels, tunnels, wells, CAFO
• doesn’t include agricultural stormwater discharges + return flows from irrigated agriculture

Question 3

Point Source - Evading the Statute

Answer 3

• if you can shift discharge from point source to nonpoint source, you get out of CWA regulation

Question 4

Municipal and Industrial Stormwater Discharges

Answer 4

• ## discharges composed entirely of stormwater generally don’t require permits, but there are exceptions (industrial activity, if it contributes to violation of water quality standards)

Question 5

Addition Issues

Answer 5

• groundwater and proximate cause limits
• created by the point source
• introduction to vs. movement within
• one water to another water
• proof of addition when multiple sources

Question 6

County of Maui v. Hawaii WIldlife Fund

Answer 6

• county wastewater treatment facility
• 3-5 million gallons treated effluent injected daily into wells 180 to 250 below, migrates to Pacific Ocean along two miles of coastline
• takes months to travel one-half mile

Question 7

County of Maui - Q Presented

Answer 7

• if pollutant released from point source travels short distance through groundwater + foreseeably reaches nav surface waters, does it fall within CWA prohibition on unpermitted discharges?

Question 8

County of Maui - Maui’s Args

Answer 8

• pollutants are not added to nav waters by point source unless the point source itself directly conveys the pollutants into such waters
• discharge does not accordingly include pollutants that first: travel over land before reaching nav waters or travel through groundwater to reach nav waters

Question 9

County of Maui - EPA Arg

Answer 9

• pollutants NOT added to nav waters by point source if first travel through groundwater
• discharge MAY include pollutants that originate w/ point source then travel over land before reaching nav waters
• their arg is that so much groundwater eventually reaches surface water that there’s no way to regulate it without ending the Congressional exclusion of groundwater from the act

Question 10

County of Maui - Hawaii Wildlife Fund Argument

Answer 10

Groundwater travel and travel over land counts when two conditions are met:
- pollutant in nav waters is FAIRLY TRACEABLE to point source
- point source = PROXIMATE CAUSE of added pollutants

• problem: proximate cause lacks textual basis

Question 11

Rapanos and Prox Cause

Answer 11

• basically, Scalia in Rapanos was trying to assuage worries about tributaries + said would be covered even if tributaries weren’t nav waters because the pollutant could still go into the nav waters (pollution addition doesn’t need to be direct)
• used to support Hawaii Wildlife arg

Question 12

County of Maui - Decision

Answer 12

• 2020
• Breyer opinion embraces functional equivalent test - you need a permit if adding the pollutants through groundwater is the “functional equivalent of “a direct discharge from the point source into navigable waters”

Question 13

County of Maui - Traceability

Answer 13

• SCOTUS rejects traceability as too broad = also says for groundwater, statutory structure indicates Congress intended to leave substantial responsibility and autonomy to the states

Question 14

County of Maui - SG Groundwater Exclusion Arg

Answer 14

• too narrow - “would risk serious interference with EPA’s ability to regulate ordinary point source discharges” (basically massive loophole, you could just move the pipe back a few feet so it technically goes through groundwater)

Question 15

County of Maui - Immediate Source Argument

Answer 15

• would create loophole
• reading “from” as connoting a means would be weird (“does not remotely fit in this context”)
• not supported by text

Question 16

County of Maui - Functional Equivalent

Answer 16

• need “permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge”

“just some of the factors that may prove relevant”:
- transit time
- distance traveled
- nature of the material through which the pollutant travels
- extent to which the pollutant is diluted or chemically changed as it travels
- amount of pollutant entering the navigable waters
- manner by or area in which the pollutant enters the nav waters
- degree to which the pollutant has maintained its specific identity

TIME AND DISTANCE = MOST IMPORTANT in most cases but not all

Question 17

County of Maui - Administrative Implementation

Answer 17

• Maui and gov said would expand statute-> SCOTUS says EPA has applied permit reqs to some but not all groundwater discharges for over 30 yrs + has tools to mitigate harms (general permits, permits based on best practices)

Question 18

County of Maui - Kavanaugh Concurrence

Answer 18

• emphasizing the Scalia angle - discharge doesn’t need to be direct, and if it naturally washes downstream it likely violates the statute

Question 19

National Mining Assoc. v. Army Corps of Engineers - Facts

Answer 19

• D.C. Cir. 1998
• deals w/ fallback - when you remove material from the water and then return it in substantially the same spot as the initial removal
• Tulloch Rule said fallback was covered - would mean all excavation and dredging performed in wetlands subject to fed reg

Question 20

National Mining Association - Decision

Answer 20

• strikes down Tulloch Rule
• can’t be squared w/ plain meaning of “Addition” notwithstanding extending pollutant to “dredged material”
• a reasoned rule that attempted to distinguish between all redeposit and “regulable redeposits” “would merit consideration deference”
• Silberman concurrence - temporal and/or geographic separation needed to regulate, vs. redeposits same material into same water body

Question 21

National Mining Association - EPA Response

Answer 21

• 2001 EPA/Corps regulation
• creates rebuttable presumption earth-moving material a “discharge” + not just incidental fallback

Question 22

Borden Ranch Partnership v. United States Army Corps of Engineers

Answer 22

• 9th Circuit
• engaged in deep ripping - one way of taking a nav water and making it NOT a nav water
• could theoretically DRAIN a body of its water so that it would no longer be covered (statute technically only covers additions, vs. draining you’re taking stuff out)
• 9th Circuit said deep ripping WAS covered by CWA -> SCOTUS winds up affirming

Question 23

South Florida Water Management District v. Miccosukee Tribe of Indians - Facts

Answer 23

• 2004
• water being transferred - trying to move from residential area to water conservation area
• PROBLEM - water from the residential area is polluted (not intentional, just runoff)
• q then of whether pipe carrying water from one area to another is a point source

Question 24

Miccosukee - FL Args

Answer 24

• not adding anything to the water being pumped
• pipe is only moving the water that has been polluted elsewhere
• FL ultimately discards this though and goes with US gov’s arg (seen as stronger)

Question 25

Miccosukee - Tribe Args

Answer 25

- the pipe is clearly a conveyance and pollutants are coming out of it - focuses on definition of point source

Question 26

Miccosukee - Gov Args

Answer 26

- focuses on "addition to" nav waters - no addition here because the pollutant was already in the nav waters of the US (being moved from one nav water to another) -> Prof was at first skeptical of this arg - weird to say nav waters as a whole vs body by body, and weird to say you can pollute as long as the pollutant is coming from another nav water - note that EPA filed something disagreeing with this - said it was a rogue brief by SG

Question 27

Miccosukee - Decision

Answer 27

- says FL's arg untenable - point source doesn't need to be the original source/generator of the pollutant, just needs to convey it to nav waters - also indicates that it thinks gov's unitary waters arg is ridiculous, but formally says it won't address it because the argument wasn't raised below - sends the case back to district court to consider whether the water conservation area and the canal used to transport the water are distinct -> if they're not distinct water bodies, you don't need a permit - if the water bodies are "fully distinct" it's an addition but if they're the same water body it's not

Question 28

Miccosukee - EPA Reaction

Answer 28

- 2008 - Water Transfer Rule - codifies that transfers aren't subject to CWA regulation under NPDES - only focused on 402 though (doesn't apply to 404 dredging and filling b/c that would ruin the 404 program)

Question 29

Catskill Mts Chaptr of Trout Unlimited v. EPA

Answer 29

- 2015, 2nd Circuit Upholds Water Transfer Rule -statutory ambiguity (all waters vs indiv bodies, not clear from structure and purpose) -reasonable EPA construction (congressional acquiescence, burdensome + costly regs, other avenues address problem)

Question 30

Los Angeles County Flood Control District v. NRDC - Facts

Answer 30

- 2013 - NRDC says LA County is violating its 402 permit - looked at water quality and said it wasn't in line with the permit

Question 31

LA County - District Court

Answer 31

- says monitoring results don't establish liability b/c monitoring not at precise point of discharge -> need more precise ev of source

Question 32

LA County - Court of Appeals

Answer 32

- rejects NRDC arg that monitoring ev establishes liability as a matter of law - BUT rules in favor of NRDC based on arg not made that "discharge from a point source occurred when the still-polluted stormwater flowed out of the concrete channels where monitoring stations located, through an outfall, and into the nav waters"

Question 33

LA County - SCOTUS Qs Presented

Answer 33

- LA County says the 9th Cir decision inconsistent w/ Miccosukee (its same water body, so no discharge) - NRDC responds - says the Miccosukee answer IS there's no discharge, but pivots to its preferred arg - CWA requires self-monitoring + reporting under NPDES permits -> LA County is in violation of its permit, which required instream compliance monitoring

Question 34

LA County - Problem for NRDC at SCOTUS Level

Answer 34

- abandoned the arg they'd won on in the 9th Circuit, but wanted to go back to their og arg -> problem b/c they hadn't filed a conditional cross-petition (would've needed to admit 9th Cir wrong at cert stage)

Question 35

LA County - SCOTUS Decision

Answer 35

- adheres to Miccosukee and reverses the 9th Circuit's judgment "transfer of polluted water between 'two parts of the same water body' does not constitute a discharge of pollutants under the CWA" - says it doesn't reach NRDC's other arg and just remands to 9th Circuit