EPA AND ACOE ISSUE NEW “WATERS OF THE UNITED STATES” RULE FOR CLEAN WATER ACT JURISDICTION

In April 2020, two days before the U.S. Supreme Court issued its decision in County of Maui v. Hawaii Wildlife Fund, the United States Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (ACOE), published the Navigable Waters Protection Rule redefining the scope of waters subject to federal regulation under the Clean Water Act (Act or CWA).

The Act, which prohibits the discharge of any pollutant into “navigable waters” without a permit from the EPA under the National Pollutant Discharge Elimination System (NPDES) and the discharge of dredge or fill material into “navigable waters” without a permit from the ACOE under the Act’s Section 404 permit program, defines “navigable waters” as “the waters of the United States, including the territorial seas.” Although the Supreme Court has consistently held that the CWA’s jurisdiction extends beyond waters that are actually navigable, a clear definition of “waters of the United States” (WOTUS) has eluded lower courts and federal regulators since the Supreme Court decided Rapanos v. United States in 2006. In Rapanos, a plurality opinion by Justice Antonin Scalia interpreted WOTUS to cover relatively permanent or continuously flowing bodies of water connected to traditional navigable waters, as well as adjacent wetlands with a continuous surface water connection to these waters. Although concurring in the ultimate decision, Justice Anthony Kennedy wrote a separate opinion with a different interpretation of WOTUS, covering any wetlands that have a “significant nexus” with traditionally navigable waters. The 4-1-4 decision did not establish a clear precedent for the WOTUS definition.

In June 2015, the Obama Administration published the Clean Water Rule to clarify the WOTUS definition after questions arose over the government’s authority when confusion around the WOTUS definition stalled CWA enforcement actions. The Clean Water Rule looked to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and adopted Justice Kennedy’s “significant nexus” standard to implement this objective. The rule thus covered any waters that, either alone or in combination with similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of traditional navigable waters. It established six categories of waters that were jurisdictional by rule; specified waters that were excluded from CWA jurisdiction; and identified two categories of waters (similarly-situated regional waters and floodplain waters) that could be subjected to a case-specific significant nexus jurisdiction analysis.

The new Navigable Waters Protection Rule replaces the Clean Water Rule and, in doing so, shifts the emphasis of the WOTUS definition more in line with Justice Scalia’s plurality opinion in Rapanos. Under the new rule, jurisdictional waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The new rule establishes four categories of jurisdictional waters: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries that contribute surface water flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters. All other waters or features are excluded from CWA jurisdiction.

This new rule will have the effect of further muddying the waters of CWA jurisdiction as the regulatory pendulum swings back once again, risking further confusion in an area where consistency and predictability are key. As the new rule reduces the Act’s reach over the nation’s waters, it is expected that it will also reduce the number of permits required under the NPDES and Section 404 permit programs. There are five lawsuits currently in federal court which are challenging the Navigable Waters Protection Rule, including a lawsuit in Massachusetts federal court.

We will continue to monitor judicial and administrative developments under the CWA as courts, the EPA, and the ACOE apply this new rule. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

By Peter M. Vetere

U.S. SUPREME COURT ISSUES NEW GUIDANCE ON CLEAN WATER ACT PERMITTING

In April, the United States Supreme Court issued a decision that could drastically expand the scope of activities requiring a permit under the federal Clean Water Act (CWA or Act). The case, County of Maui v. Hawaii Wildlife Fund, involved a wastewater reclamation facility in Hawaii that pumped treated waste water into groundwater injection wells, from which the effluent would enter groundwater and flow to the Pacific Ocean.

The Court held that, even though the effluent traveled through groundwater (a non-point source) before entering the ocean, this activity required a CWA permit, because it was “the functional equivalent of a direct discharge from the point source into navigable waters.” In doing so, the Court introduced a new test for determining whether indirect discharges, i.e., when point-source discharges of water pollution enters a non-point source (such as groundwater) before traveling to a water body covered by the CWA, required CWA permits.

The holding is particularly relevant to wastewater treatment facilities who pump treated effluent into groundwater wells, since that is the particular fact pattern at issue; however, it is also relevant to any point source discharger from whom pollutants could travel through groundwater or another non-point source into waters of the United States.

 

CWA Permitting and Application

The CWA prohibits the “discharge of any pollutant by any person” into the waters of the United States without that person obtaining a permit from the United States Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES). The Act defines “pollutant” broadly to include, among other things, any solid waste, sewage, and industrial, municipal, and agricultural waste discharged into water. A “discharge of a pollutant” is any addition of any pollutant to navigable waters from any point source. A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, or well, from which pollutants are or may be discharged.

Less clear is whether, and to what extent, a NPDES permit is required for discharges of pollutants to non-point sources, such as groundwater. Regulation of groundwater has traditionally been left to the states and not the federal government under the Act. Practically speaking, non-point source pollution is rarely traceable to any single discrete source and is, therefore, difficult to regulate through individual permits.

Not too long before the Court’s decision, in November 2019, the federal court in Massachusetts acknowledged the ambiguity inherent in the CWA’s application to discharges of pollutants into groundwater. In Conservation Law Foundation, Inc. v. Longwood Venues & Destinations, Inc., the District of Massachusetts deferred to EPA’s April 2019 interpretative statement on the issue and held that “discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrological connection to navigable waters.” Thus, the Supreme Court’s decision in County of Maui nullified what was the (not at all longstanding) prevailing law on this issue in Massachusetts.

The Court’s Decision and the New “Functionally Equivalent” Test

In County of Maui, a majority of the Supreme Court (in a 6-3 opinion written by Associate Justice Stephen G. Breyer) resolved the ambiguity by applying the CWA to certain discharges of pollutants to groundwater. Under the new test, the addition of a pollutant from any point source requires a NPDES permit when (i) a point source directly discharges pollutants into navigable waters, or (ii) the addition of the pollutants is “the functional equivalent of a direct discharge from the point source into navigable waters.”

Unfortunately, by resolving one ambiguity, the Court may have created more confusion instead of clarifying the law. The majority essentially staked a middle position between two arguments. The petitioner, the County of Maui’s wastewater treatment facility, argued for a bright-line “means-of-delivery” test where only direct discharges from a point source to a covered water required a permit, focusing on the manner in which the pollutant is conveyed to the covered water. The respondents, several environmental groups who filed a CWA citizen suit against the water treatment facility, argued for application of the Ninth Circuit’s “fairly traceable” test, which would have required a permit whenever pollutants are fairly traceable from the point source to a navigable water. The U.S. Solicitor General submitted an amicus brief in support of the petitioner and arguing for the application of the EPA’s April 2019 interpretative statement. The Court declined to grant deference to the EPA’s interpretation, because no party had requested it and because a total exclusion of all discharges through groundwater “would open a loophole allowing easy evasion of the [Act’s] basic purposes.”

In the end, the Court settled on the “functional equivalent” test and identified several factors which may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters:

  • transit time;
  • distance traveled;
  • the nature of the material through which the pollutant travels;
  • the extent to which the pollutant is diluted or chemically changed as it travels;
  • the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source;
  • the manner by or area in which the pollutant enters the navigable waters; and
  • the degree to which the pollution has maintained its specific identity at the point it enters the navigable water.

The first two factors, time and distance, will be the most important factors in most cases.

The problem with this new test is that it introduces a number of new ambiguities to replace the original ambiguity over whether discharges to groundwater required a CWA permit. The Court acknowledged these shortcomings: the list of factors is not exhaustive (“courts can provide guidance through decisions in individual cases”); the two factors which the Court said are most important will “not necessarily [be important in] every case;” and even when time and distance are important, there is only a sliding scale of the acceptable range (a permit is required somewhere between “[w]here a pipe ends a few feet from navigable waters” and “[i]f the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later”).

During a status conference in federal district court following the decision, the Maui wastewater facility declared its intent to proceed to discovery and prepare its case for trial in light of the Supreme Court’s ruling. Both parties will have an opportunity to submit additional briefs on discovery issues, which the district court will hear in a further status conference at the end of June.

In combination with the EPA’s newly-promulgated Navigable Waters Protection Rule revising the definition of “waters of the United States,” which takes effect on June 22, 2020, the Supreme Court’s decision marks a major shift in CWA permitting.

We will continue to monitor judicial and administrative developments under the CWA as courts and the EPA apply this new “functional equivalent” test. For any questions regarding this evolving area of the law, please reach out to the attorneys at Mackie Shea Durning, PC.

 

By Peter M. Vetere

Mackie Shea Durning PC secures an important ruling on the Water Management Act

Town of Concord’s water supply at Nagog Pond.

On October 11, 2019, Judge Jennifer S.D. Roberts of the Massachusetts Land Court issued a Memorandum of Decision granting summary judgment to the Town of Concord resolving a dispute among  Littleton, Acton and Concord regarding which statutory authority governed the water withdrawal rights from Nagog Pond.

Nagog Pond has  been a source of public drinking water for Concord since it took the pond via eminent domain in 1909.  Littleton and Acton argued that a provision in an 1884 Act, which gave Concord rights to Nagog Pond, reserved withdrawal rights for the two towns where the pond is located. Concord argued its withdrawal rights were superior to any provisions of the 1884 Act, because it held a Registration under the 1985 Water Management Act, which grandfathered qualified existing water withdrawal rights.

Mackie Shea Durning PC attorneys Peter Durning, John Shea, and Gail Magenau Hire compiled an analysis of the legislative history for the Water Management Act and provided a statutory interpretation of the language of the statute to demonstrate that the Legislature intended to repeal prior special acts, like the 1884 Act, as it set up a new regulatory regime under the Water Management Act.

In her written Decision, Judge Roberts confirmed that the Water Management Act was “a comprehensive statute that was designed to address a state-wide problem – the preservation and allocation of water resources” without regard for municipal or other political boundaries.  Judge Roberts noted that in its deliberations on the scope of the Water Management Act, the Legislature was concerned with pre-existing rights created by approximately 650 prior special acts regarding water withdrawals, like the 1884 Act. Judge Roberts affirmed that the legislature “chose to address that concern by registering existing water withdrawals and continuing those registrations, upon timely renewal, ‘forever’.”  Based on the language of the two statutes, Judge Roberts concluded the “1884 Act is repugnant to and inconsistent with” the Water Management Act and that any rights granted to Littleton and Acton under the 1884 Act were extinguished.

The Land Court’s Decision to uphold Concord’s Registration to withdraw water from Nagog Pond will allow Concord’s investment in the construction of a new state-of-the-art water treatment facility to go forward without a lingering concern that Littleton and Acton might attempt to usurp Concord’s Registration which perfected and protected its withdrawal rights at Nagog Pond.

The PFAS Zone

Picture if you will, a grey Friday morning in New England. While the mist lifts from the steeple just off the town green and kids shuffle to school bundled against the chill, during this inauspicious dawn on April 19, 2019, Massachusetts crossed over into the “PFAS Zone.” 

On that date, the Massachusetts Department of Environmental Protection (“MassDEP”) unveiled proposed changes to regulatory standards for certain hazardous materials in the state’s rulebook for conducting response actions to remediate contamination, the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”). 

The draft revisions address a class of per- and polyfluorinated compounds commonly referred to as PFAS. These synthetic compounds are valuable in industrial and commercial applications for their hydrophobic characteristics. They are used in stain-resistant carpets and upholstery, medical instrumentation, weatherproofing fabrics, car wash waxes, firefighting foams, and microwavable popcorn bags. It is estimated that PFAS is present in the bodies of 98% of the US population.

MassDEP’s proposal sets a reportable concentration and clean-up standards for PFAS in soil and groundwater. Significantly, the GW-1 cleanup standard for groundwater, which may contribute to drinking water, is just 20 parts per trillion (ppt) for the aggregate concentration of six different PFAS compounds. This value sets the baseline level that the state believes is acceptable to persist in the environment without causing an adverse impact on public health. Thus, even though the proposed cleanup standard in the MCP is not an express regulation on drinking water standards, in effect, the regulatory package sets forth the state’s proposed conclusion with respect to the acceptable amount of PFAS in drinking water that is protective of public health.

At the same time that the state released the draft regulations for the MCP, MassDEP also revealed its intention to set a maximum concentration limit (“MCL”) for PFAS in the regulations for drinking water during the winter of 2019-2020. Though MassDEP has just started a stakeholder process to receive feedback on an appropriate MCL for drinking water, it is very likely that MassDEP will propose 20 ppt as the maximum acceptable level of PFAS in drinking water as that process proceeds.

Bending the dimension of time, just days before making its public pronouncements unveiling its proposed rulemaking, MassDEP sent letters directly to water suppliers disclosing the formal start of the MCP comment period. While this communication revealed the proposed lower standards for protecting public health, it also reinforced the fact that, until the MCL has been established as a formal regulatory requirement, public water suppliers have no legal obligation to comply with the 20 ppt limitation on PFAS in drinking water. In this manner, public water suppliers were given the burden of deciding whether to comply with the most stringent proposed PFAS limit as soon as the proposed rule was announced, or to continue to plan and budget for compliance with the legal and regulatory requirements.

Indeed, while the proposed cleanup value for PFAS is a compelling basis for protecting public health, the press release from MassDEP only indicates the start of a public comment period. During that time, MassDEP is going to hold four public meetings – one in each of the four MassDEP regions. (See May 3, 2019 Public Notice for Revised meeting dates.) The Department will also accept written public comments as part of the administrative review process. Not only is the state’s expression of the “safe” level of PFAS in drinking water not yet law, it is likely that public comments will argue that such a stringent value is not necessary to avoid health impacts. In the end, MassDEP may reevaluate its conclusions about the appropriate PFAS level to protect public health.

The scientific community has not reached a consensus on the true impact of PFAS on human health. While there have been documented health impacts from the C8 Health Project funded by DuPont in the wake of major PFAS exposure in West Virginia, the root basis for the movement pushing the “tolerable” levels of PFAS lower and lower are predominantly rodent studies which do not necessarily correlate to the physiological conditions in humans. Much of the caution behind the regulatory fervor is driven by the fact that PFAS in pregnant women can cross the placenta barrier into embryos and through breast milk to infants. The possibility of PFAS being present in developing cells and the fear of complications stemming from these man made compounds in the body, are the main drivers of the health risk assessments. While these possibilities are concerning, it is unclear whether the potential health impacts to the sensitive populations are best addressed by public water system regulations.

Roughly, one week after the press release from MassDEP, US EPA released interim recommendations on PFAS. EPA issued guidance that “[i]n situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFAS over 70 ppt.” Like the limbo of the Massachusetts regulatory rulemaking process, this communication from EPA is not sufficiently instructive. The phrase “responsible parties will…” is not a clear mandate to prompt action to preserve and protect public health. 

Furthermore, EPA’s announcement specifically acknowledges, “toxicity information is being developed on additional PFAS and [EPA] will consider that information as it becomes available.” While the regulator’s candor is appreciated, this statement from EPA undermines the conclusion that water suppliers and PRPs must act expeditiously to avoid providing water with greater than 70 ppt of PFOA and PFOS – let alone over MassDEP’s expected combined standard of 20 ppt, because the toxicity information is still being developed and analyzed. 

Though by operation of law states can set more stringent contaminant levels than the federal government, for public water suppliers in Massachusetts, the decision by EPA to set 70 ppt as protective of public health contravenes MassDEP’s drive to adopt a much lower standard. Another confounding factor is that, despite the considerable attention on this issue, there is no consensus among the New England states on the proper limit. The differences stem from different assumptions made by the individual states’ health risk assessors, like the target human subject (VT- breastfeeding infants; NH – lactating female) and the volume of water the target subjects will consume in an average day.

Another significant difference between EPA’s approach and the regulations proposed by Massachusetts, is the number of regulated compounds. EPA’s health advisory only addresses PFOA and PFOS, while the current health advisory in Massachusetts requires the monitoring of five PFAS compounds and the proposed regulations set 20 ppt as the limit for a combined total of six compounds. The so-called “Massachusetts 6” consists of PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly-added PFDA (Perfluorodecanoic Acid). This regulatory approach adds yet another dimension to the PFAS Zone in Massachusetts, because it requires specialized testing, which may not be readily available from all vendors, and will certainly drive up monitoring and compliance costs within Massachusetts.

As with many of the scenarios in Rod Sterling’s harrowing TV series, a critical dimension of the PFAS Zone is the role of public perception. For the public at large, these disparate data points among states and the federal government and between current and proposed regulatory values sew confusion and concern. Members of the public who learn Massachusetts intends to lower its remedial standard for groundwater that may contribute to public drinking water resources to 20 ppt, would have an understandable basis to demand that their local water supplier must meet the proposed standard to protect public health today. While there is no legal obligation for water suppliers to meet the predicted 20 ppt standard, public opinion and MassDEP prodding is forcing public water suppliers with reported concentrations over 20 ppt to plan for the design and construction of expensive PFAS treatment systems.

Of course, no regulator or public water supply professional can ignore the signs indicating a public health crisis may happen on their watch.  The experience in Flint, Michigan is still seared in the minds of people who make frontline decisions on water quality and acceptable health standards. No one wants to be the next Flint. Perhaps justly, the lesson from Flint is to be proactive and ward off accusations of complacency when there is evidence of the potential for negative public health impacts from PFAS.

For public water suppliers in Massachusetts, there is no comfort in this Twilight Zone of guidance and proposed regulation. Water supply professionals must continue the daily vigilance to ensure clean and safe water. They must grapple with the fear that PFAS and other new synthetic “invaders” may appear that will require expensive cutting edge treatment. Emerging contaminants are causing all of us to finally recognize the true cost of drinking water.

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Drought Management Plan

Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe.  Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies.  I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report.  I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.

If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission.  Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches.  There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9).  Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise.  However, large storms do not mean significant groundwater recharge or steady stream flows.  They mostly result in localized flooding and rapid stormwater flows.

Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.”  The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies.  I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.

Great Pond in Jan. 2017. Photo by Ed Baker

The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000.  It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013.  During the 2016-17 drought, the 2013 DMP was used and lessons learned.  EEA and MEMA are responsible for coordinating response efforts and communications with the public.  The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials.  The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.

MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection.  MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA.  Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program.  In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).

The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP.  There is no one-size-fits-all Drought Plan.  Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals.  Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems.  The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.

The DMP is considered to be a living document to be updated and revised based on experiences.  The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.