Despite EPA Guidance, Groundwater Permitting Decisions Remain Murky

February 10, 2021

The Trump EPA’s guidance on implementing the Supreme Court’s test for determining when pollutants that travel through groundwater to surface waters require a Clean Water Act (CWA) discharge permit is unlikely to be of much assistance to industry, due to ongoing legal uncertainty and a likely change in approach from the Biden administration.

“The only thing certain is more litigation and likely yet more ‘guidance’ from EPA,” Jeffrey Porter, chair of the environmental law practice at Mintz, said during a Feb. 9 webinar about the “muddy waters” resulting from the high court’s ruling last year in County of Maui v. Hawaii Wildlife Fund.

The 6-3 Maui decision, issued April 23, outlined a seven-factor test for determining whether a discharge of pollutants to groundwater, which is generally not subject to CWA permitting requirements, is the “functional equivalent” of a direct discharge to jurisdictional waters that requires a permit.

The majority said that of the seven factors, time and distance will be the most important in most cases, but not necessarily every case. And the ruling said that “courts can provide guidance through decisions in individual cases” while EPA can provide administrative guidance, within statutory boundaries, in numerous ways, including grants of individual permits, promulgation of general permits or the development of general rules.

In its final days, the Trump administration finalized guidance to implement the Maui decision that added an eighth factor to consider -- the design and performance of the system or facility from which the pollutant is released. Industry groups in comments on an earlier draft version of the guidance were generally supportive of the Trump EPA’s approach while Democratic state attorneys general and environmentalists called the guidance illegal for several reasons.

While the high court suggested subsequent lower court rulings could provide greater clarity on how to apply the functional equivalent test, that has not really happened yet, Porter said on the webinar.

The Supreme Court remanded the Maui case back to the U.S. Court of Appeals for the 9th Circuit, which in turn remanded it to the U.S. District Court for the District of Hawaii, where it remains pending as the parties develop their arguments as to whether the facts there meet the functional equivalent test.

Following its decision in Maui, the high court vacated and remanded a related case, Upstate Forever, et al., v. Kinder Morgan, to the 4th Circuit. The parties briefed the 4th Circuit on whether the fact pattern in the case, involving a spill from an underground gasoline pipeline that broke, was functionally equivalent to a direct discharge. But the appeals court never ruled on the issue because environmentalists and Kinder Morgan reached a settlement that ended the litigation.

Also, a ruling is pending from the 7th Circuit in Prairie Rivers Network (PRN) v. Dynegy Midwest Generation, where PRN is seeking to impose CWA penalties for coal ash leaks at a shuttered power plant near Oakwood, IL. The 7th Circuit heard oral argument Nov. 13, where Judge Ilana Rovner noted that both PRN and the power company read Maui as a victory for their side.

CWA Ruling

One of the few courts to address the Maui question is the U.S. District Court for the Northern District of Mississippi, where plaintiffs argued in Melton Properties, et al. v. Illinois Central Railroad that Maui overruled the 5th Circuit’s precedent in Hamker v. Diamond. The plaintiffs are property owners or farmers near the site of a train derailment that caused a toxic spill, and they urged Judge Debra M. Brown to allow their CWA claims to proceed.

Hamker held that an isolated spill cannot support a CWA citizen suit because the law’s citizen suit provision does not apply to wholly past violations and spills cannot be ongoing violations.

And in a Dec. 14 ruling, Brown reiterated her decision to dismiss the plaintiffs’ CWA claims, saying, “Neither of these holdings [in Hamker] has been called into question, much less unequivocally overruled, by the Supreme Court” in Maui or two other cases cited by the plaintiffs -- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation and Rapanos v. United States.

“Put differently, as applied to this case, the opinions did not address whether the remnants of the spill amounted to an ongoing violation; instead, they addressed whether, within the meaning of the CWA, the migration of the remnants to a navigable water could be deemed from the relevant point source (the railcar),” Brown said. “They would thus support the conclusion that if there was an ongoing leak from the railcar, there would likely be a violation even if the leak was not directly into a navigable water.”

Porter noted that EPA could provide some clarity by developing general permits for some situations that would be covered by the Maui decision, something the Supreme Court explicitly suggested. But there is no indication that EPA in any administration has been interested in this, he said.

Responding to questions from webinar participants on whether the Biden administration is likely to reconsider the Trump Maui guidance and whether states with delegated CWA permitting authority may opt to ignore any EPA guidance, Porter said, “Absolutely.”

He suggested that if a discharger in a delegated state conducts an analysis that indicates they might have a functionally equivalent discharge, they should apply for a permit, which would provide a legal defense from citizen suits.

However, for the few states and territories without a delegated permitting program, dischargers could still be subject to citizen suits if EPA declines to issue a permit, he said. -- Lara Beaven (

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