Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

By John Heintz, Lucas Quass, and Steven Mach

On February 2, 2017, the Los Angeles Regional Water Quality Control Board (the Regional Board) approved a Revised Memorandum of Understanding (the 2017 MOU) between the City of Malibu (the City), the Regional Board, and the State Water Resources Control Board (the State Board) to extend the compliance deadlines for the Los Angeles Region Basin Plan amendment prohibiting new discharges from or construction of septic systems in the Malibu Civic Center area (the Basin Plan Prohibition). The 2017 MOU is the second amendment to an MOU initially entered in 2011[i] between the City and the Regional Board that, among other things, adjusted the timing of compliance with the Basin Plan Prohibition.

Background

On November 5, 2009, the Regional Board passed the Basin Plan Prohibition. The Regional Board justified this controversial prohibition by citing the alleged contribution of on-site wastewater discharges to the impairment of water resources in and around Malibu’s Civic Center. The State Board approved the Regional Board-adopted Basin Plan Prohibition on September 21, 2010, and it became effective in December 2010. In addition to prohibiting the development of any new on-site wastewater disposal systems (OWDSs), the Basin Plan Prohibition requires the phasing-out of discharges from existing OWDSs in the Malibu Civic Center area by November 5, 2015 (for commercial dischargers), or by November 5, 2019 (for residential dischargers).

By Claudia O’Brien, Karl Karg, and Joshua Marnitz

On April 19, 2013, the US Environmental Protection Agency (EPA) announced proposed technology-based effluent limitation guidelines and standards for steam electric power generating units. The proposed national standards, which are based on data collected from industry, provide for a phased-in approach and the use of technologies already installed at a number of plants. EPA argues that this regulatory action is necessary to reduce the amount of toxic metals and