CWA - Discharge Flashcards
(35 cards)
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
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
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
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)
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
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
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?
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
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
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
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
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”
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
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)
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
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
Miccosukee - Tribe Args
- the pipe is clearly a conveyance and pollutants are coming out of it
- focuses on definition of point source
26
Miccosukee - Gov Args
- 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
Miccosukee - Decision
- 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
Miccosukee - EPA Reaction
- 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
Catskill Mts Chaptr of Trout Unlimited v. EPA
- 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
Los Angeles County Flood Control District v. NRDC - Facts
- 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
LA County - District Court
- says monitoring results don't establish liability b/c monitoring not at precise point of discharge -> need more precise ev of source
32
LA County - Court of Appeals
- 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
LA County - SCOTUS Qs Presented
- 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
LA County - Problem for NRDC at SCOTUS Level
- 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
LA County - SCOTUS Decision
- 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
