Focus
Clean Water Act covers some groundwater discharges, U.S. Supreme Court rules
The New York Times – April 23
The U.S. Supreme Court on Thursday ruled in a 6-3 decision that federal Clean Water Act (CWA) jurisdiction may extend to pollutants that reach waters of the United States (“WOTUS”) indirectly through groundwater. In County of Maui v. Hawaii Wildlife Fund, environmental groups argued that the County’s wastewater treatment plant on Maui, Hawaii, required a CWA permit in order to use injection wells to dispose of some four million gallons of treated sewage each day by pumping it into groundwater that seeped about a half-mile to the Pacific Ocean. The County took the position that no federal permit was required because the discharges were not made directly to WOTUS, but instead only indirectly through groundwater, which, traditionally, has been considered to be waters of a state, not of the United States. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the environmental groups, holding that the CWA applied because the pollutants that reached the ocean were “fairly traceable” to the injection wells. The Supreme Court rejected the Ninth Circuit’s “fairly traceable” standard, but held nonetheless that the CWA could apply to discharges to groundwater under some circumstances. The appropriate inquiry, according to the majority opinion, is whether “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Justice Breyer, writing for the majority, listed several factors for courts to consider in determining whether a discharge through groundwater is the “functional equivalent” of a direct discharge to the WOTUS. “Time and distance are obviously important,” he wrote, but he listed five other considerations, too, including the material through which the pollutants travel and whether the pollutants are diluted or chemically altered along the way. The Court remanded the case to the Ninth Circuit for reconsideration under the new standard.
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News
U.S. Supreme Court rules private party claims for restoration damages at Superfund sites cannot proceed without EPA approval
Reuters – April 20
The U.S. Supreme Court on Monday ruled that landowners whose property is impacted by federal Superfund sites may sue in state courts under state law to recover costs of more extensive cleanup than the U.S. Environmental Protection Agency (EPA) ordered under the federal law governing such cleanups, known as CERCLA -- but that they may be required to obtain EPA’s consent to the additional cleanup. The case involved claims for “restoration damages” by private landowners whose property was contaminated by lead and arsenic from Atlantic Richfield’s former Anaconda copper smelter in western Montana. The justices overruled the Montana court’s decision that had allowed state law claims to proceed to trial notwithstanding the EPA-approved remedy for the cleanup. In the 7-2 Supreme Court ruling authored by Chief Justice John Roberts, the court decided that under CERCLA, the property owners, who were themselves “potentially responsible parties” under CERCLA, first needed the EPA’s approval before undertaking restoration of their own contaminated land. Monday’s ruling prompted a sharp exchange between Justices Roberts and Gorsuch. Gorsuch said the court should have allowed restoration efforts under state law, and compared requiring EPA approval to “paternalistic central planning.” Roberts said it was instead the “spirit of cooperative federalism.”
New rule clarifies federal jurisdiction over water bodies
Engineering News-Record – April 21
The Trump administration on Tuesday published a revised rule in the Federal Register defining which water bodies are subject to federal jurisdiction. The publication of the Navigable Waters Protection Rule (Rule), a replacement for the Obama Administration’s more expansive waters of the United States rule, is set to become final on June 22. The new Rule lists four categories of waters that would be subject to federal jurisdiction: territorial seas and waters used in interstate or foreign commerce; certain tributaries; lakes and ponds; and wetlands that abut any of the other three types of waters. It also specifies 12 types of waters that would not be subject to federal regulation. Among them are ephemeral streams and similar bodies of water, groundwater, ditches, previously converted cropland, artificial lakes and ponds, constructed stormwater control ponds or other features and “water-filled depressions” that are considered “incidental” to construction or mining activity. The publication of the Rule is expected to trigger litigation to invalidate the Rule before it becomes effective.
California’s largest water suppliers must report usage
U.S. News & World Report – April 21
California’s largest water suppliers will have to report their monthly use and conservation efforts under a measure approved this Tuesday by state regulators. More than 400 urban systems that supply 90 percent of the state’s population will have to make monthly reports to the State Water Resources Control Board under a vote that makes the voluntary program mandatory. After passing a legal review, it would take effect in October. The last time such reports were required was from 2015 to 2017, when the board enacted an emergency water conservation regulation in the midst of a five-year statewide drought. Nearly half of the state currently is abnormally dry or has moderate or severe drought, according to the National Oceanic and Atmospheric Administration’s National Integrated Drought Information System.
Mountain lions get endangered species protections in parts of California
The Mercury News – April 17
In a 5-0 vote last Thursday, the state Fish and Game Commission granted mountain lions in six regions from San Francisco to San Diego “candidate status” to be listed as threatened under California’s Endangered Species Act in as soon as a year. Commissioners agreed with a petition from environmental groups that lions in those six regions have diminished so significantly due to habitat loss from development, being struck and killed on freeways and being shot under state permits by landowners, that they could face extinction in those regions. The vote does not affect mountain lion populations north of the Golden Gate Bridge, in the Central Valley or Sierra Nevada, where the animals are considered more numerous and less pressured by urban population growth and development.
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