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Environmental Law > CWA - Discharge > Flashcards

CWA - Discharge Flashcards

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1
Q

Discharge of a Pollutant - Definition

A
  • “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
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2
Q

Point Source - Definition

A
  • any discernible, confined and discrete conveyance
  • includes pipes, ditches, channels, tunnels, wells, CAFO
  • doesn’t include agricultural stormwater discharges + return flows from irrigated agriculture
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3
Q

Point Source - Evading the Statute

A
  • if you can shift discharge from point source to nonpoint source, you get out of CWA regulation
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4
Q

Municipal and Industrial Stormwater Discharges

A
  • ## 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)
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5
Q

Addition Issues

A
  • 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
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6
Q

County of Maui v. Hawaii WIldlife Fund

A
  • 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
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7
Q

County of Maui - Q Presented

A
  • 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?
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8
Q

County of Maui - Maui’s Args

A
  • 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
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9
Q

County of Maui - EPA Arg

A
  • 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
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10
Q

County of Maui - Hawaii Wildlife Fund Argument

A

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
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11
Q

Rapanos and Prox Cause

A
  • 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
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12
Q

County of Maui - Decision

A
  • 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”
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13
Q

County of Maui - Traceability

A
  • SCOTUS rejects traceability as too broad = also says for groundwater, statutory structure indicates Congress intended to leave substantial responsibility and autonomy to the states
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14
Q

County of Maui - SG Groundwater Exclusion Arg

A
  • 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)
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15
Q

County of Maui - Immediate Source Argument

A
  • would create loophole
  • reading “from” as connoting a means would be weird (“does not remotely fit in this context”)
  • not supported by text
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16
Q

County of Maui - Functional Equivalent

A
  • 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

17
Q

County of Maui - Administrative Implementation

A
  • 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)
18
Q

County of Maui - Kavanaugh Concurrence

A
  • emphasizing the Scalia angle - discharge doesn’t need to be direct, and if it naturally washes downstream it likely violates the statute
19
Q

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

A
  • 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
20
Q

National Mining Association - Decision

A
  • 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
21
Q

National Mining Association - EPA Response

A
  • 2001 EPA/Corps regulation
  • creates rebuttable presumption earth-moving material a “discharge” + not just incidental fallback
22
Q

Borden Ranch Partnership v. United States Army Corps of Engineers

A
  • 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
23
Q

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

A
  • 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
24
Q

Miccosukee - FL Args

A
  • 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)
25
Q

Miccosukee - Tribe Args

A
  • the pipe is clearly a conveyance and pollutants are coming out of it
  • focuses on definition of point source
26
Q

Miccosukee - Gov Args

A
  • 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
27
Q

Miccosukee - Decision

A
  • 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
28
Q

Miccosukee - EPA Reaction

A
  • 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)
29
Q

Catskill Mts Chaptr of Trout Unlimited v. EPA

A
  • 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)
30
Q

Los Angeles County Flood Control District v. NRDC - Facts

A
  • 2013
  • NRDC says LA County is violating its 402 permit - looked at water quality and said it wasn’t in line with the permit
31
Q

LA County - District Court

A
  • says monitoring results don’t establish liability b/c monitoring not at precise point of discharge -> need more precise ev of source
32
Q

LA County - Court of Appeals

A
  • 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”
33
Q

LA County - SCOTUS Qs Presented

A
  • 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
34
Q

LA County - Problem for NRDC at SCOTUS Level

A
  • 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)
35
Q

LA County - SCOTUS Decision

A
  • 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

Environmental Law (17 decks)

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