LIKE A BRIDGE OVER MURKY WATER: EXPLORING THE POTENTIAL FOR CONSISTENT APPLICATION OF NPDES PERMITTING REQUIREMENTS WITHIN THE CLEAN WATER ACT THROUGH THE COUNTY OF MAUI AND CORONA CLAY CASES.

• Author: Dulle, Claire E.

Table of Contents I. INTRODUCTION 67 II. BACKGROUND 67 A. DISCUSSION OF THE CLEAN WATER ACT 67 B. DISCUSSION OF NPDES PERMITS 70 III. COUNTY OF MAUI CASE 73 A. FACTS AND HOLDING 73 B. COURT'S DECISION 75 C. ANALYSIS 77 IV. CORONA CLAY CASE 78 A. FACTS AND HOLDING 78 B. PRECEDENT CASES 79 C. THE COURT'S DECISION 80 D. AMENDMENTS TO THE OPINION 81 E. ANALYSIS 82 V. COUNTY OF MAUI SUBSEQUENT DECISION 82 A. BACKGROUND 82 B. COURT'S DECISION 83 VI. CAN THERE BE CONSISTENT APPLICATION OF NPDES PERMITTING REQUIREMENTS? HOW CAN WE WORK TOWARD CONSISTENCY? 84 VII. CONCLUSION 85 I. INTRODUCTION

Ask any Environmental Law student what they think of the Clean Water Act and National Pollutant Discharge Elimination System (NPDES) permits, and the first response you will likely hear is a groan. The Clean Water Act has been frustrating students, lawyers, and judges alike since its inception in 1972. The statute's language is broad and leaves room for many interpretations, especially in the section regarding NPDES permits. This broad language makes understanding the statute even more difficult. Consistent holdings on interpretation and permitting requirements of the statute are largely unavailable. This comment explores the possibility of having consistent application of permitting requirements, and if so, how we could achieve it.

The first section of this comment explores the creation of the Clean Water Act, its amendments and changes over time, and how it has sparked controversy with its verbiage. The section ends by setting up a discussion of permitting under the Act, which then moves the comment into the second section--NPDES permits. This section discusses the permitting process and how the permits apply to facilities. With a basic understanding of permitting, the comment moves into a discussion of two recent cases with very important NPDES decisions. Section III explores the County of Maui case and the functional equivalent and substantial nexus tests. Section IV discusses the Corona Clay case and the level of pollution necessary to violate NPDES permits and the Clean Water Act. Finally, this comment explores whether it is possible to have a consistent application of NPDES permitting requirements, and what Congress might do to create a more even-handed application of the Clean Water Act.

2. BACKGROUND

   1. DISCUSSION OF THE CLEAN WATER ACT

      The Clean Water Act (CWA) was initially enacted in 1972 to control water pollution, and to maintain the chemical, physical, and biological integrity of the United States' water supply. (2) To achieve this goal, the CWA puts forth multiple strategies. These include a permitting system, a water quality system, and a grant and loan program. (3) The permitting system works to limit pollution discharges into surface waters. (4) The water quality system helps to identify water bodies with poor quality and pollution problems. (5) The grant program works to fund improvements of publicly owned treatment works. (6)

      The Clean Water Act has gone through changes over time. It began as the 1899 Rivers and Harbors Act, and the subsequent reform act. (7) In 1948, it became the Federal Water Pollution Control Act. (8) Thereafter, the Federal Water Pollution Control Act was amended again in 1972. (9)

      These amendments helped reduce the volume of effluents discharged from factories and sewage treatment plants into surface waters. (10) In this version of the Act, Congress set "limits for discharges from industrial sources and publicly owned treatment works in the navigable waters of the United States." (11) It also created more strict limitations on effluents being released from specific sources to "protect the water quality in a specific portion of the nation's navigable waters." (12) Finally, this section of amendments established the NPDES permitting program. (13)

      In 1977, the Flannery Decree was adopted based on recommendations from U.S. District Court Judge Thomas Flannery, who ruled on the case establishing the Toxic Pollutant List. (14) It outlined strategies for reducing toxic pollutants, by requiring the EPA to create effluent guidelines, as well as pretreatment standards and new source performance standards for sixty-five toxic pollutants. (15) Congress endorsed these regulations, and wrote several of them into law. (16) These amendments commonly became known as the CWA. (17)

      The CWA was amended in 1987. (18) These amendments included new programs for the control of toxics, regulation of storm water, stronger requirements for water quality, and an expansion of the enforcement tools of the EPA. (19)

      The Clean Water Act is administered by the EPA's Office of Water, in partnership with the local state government. (20) The basic rule of the Act is, absent a permit, "the discharge of any pollutant by any person" is unlawful. (21) The ultimate goal of the CWA is to eliminate "the discharge of pollution into navigable waters," (22) and to attain a water quality level that "provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." (23)

      The Act forbids "the addition of any pollutant from a point source to navigable waters without the appropriate permit from the EPA." (24) The CWA's language can be confusing, so the Act includes definitions to aid the reader. These definitions and their application are still heavily debated in court proceedings. The word "pollutant" is broadly defined in the CWA to include solid waste, discarded equipment, and many other things. (25) A point source is defined as "any discernable, confined and discrete conveyance ...from which pollutants are or may be discharged, including, for example, any container, pipe, ditch, tunnel, conduit, or well." (26) Finally, the Act defines the term "discharge of pollutant" as "any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source." (27) The definition of "navigable waters" has been a point of contention since the inception of the Clean Water Act.

      In 2008, the Supreme Court issued a plurality opinion on the definition of "navigable waters of the United States" in the case Rapanos v. United States. (28) The plurality concluded that "waters of the United States" only include "relatively permanent, standing or continuously flowing bodies of water 'forming geographical features'" (29) and that federal regulatory jurisdiction only extended to "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right." (30) Justice Kennedy issued a concurrence stating that federal regulatory jurisdiction under the CWA extends to wetlands that "possess a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." (31) Justice Kennedy elaborated further, providing that wetlands possess "the requisite nexus" if "either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as navigable." (32) Lower courts struggled in deciding what reasoning to follow. (33) Some courts followed Justice Kennedy's ruling, while some followed the plurality's ruling. (34) In 2015, the EPA and the Army Corps of Engineers promulgated a rule to help clear up any confusion about the scope of the CWA's jurisdiction. (35) The rule created two "bright-line categories of waters that are always jurisdictional: tributaries and adjacent waters." (36) The rule also excluded categories like storm water control features and cooling ponds. (37) The rule also extended Justice Kennedy's "significant nexus" test from Rapanos, by "delineating the set of waters to which the significant nexus trust applies, and listing factors that may be considered when assessing whether a nexus is significant." (38) The issue of deciding which waters are navigable and which are not is still at issue in many cases that come before courts today.

      We now turn back to the issue of permitting, which is discussed at the beginning of the Act. The CWA requires a permit "when there is a direct discharge of pollutants from a point source into navigable waters or when there is the functional equivalent of a direct discharge." (39) This requirement applies when the pollutant or effluent is directly discarded into navigable waters or when it "reaches the same result through roughly similar means." (40) The Act includes specific factors to decide whether a permit is required to add pollutants to navigable waters from a point source. Some factors may prove relevant in an analysis, but it depends on the circumstances of each particular case. These factors include:

      transit time, distance travelled, the nature of the material through which the pollutant travels, the extent to which the pollutant is diluted or chemically changed as it travels, the amount of pollutant entering the navigable waters relative to the amount of pollutant that leaves the point source, the manner by or area in which the pollutant enters the navigable waters, and the degree to which the pollution at that point has maintained its specific identity. (41) These CWA regulations are in place so that pollutants in navigable waters will not interfere with the state's "regulation of groundwater or of creating loopholes that undermine the statute's basic federal regulatory objectives." (42)

   2. DISCUSSION OF NPDES PERMITS

      The type of permit discussed so heavily in these sections of the Clean Water Act is the National Pollutant Discharge Elimination Systems (NPDES) permit. (43) The implementation and use of NPDES permits have worked well in eliminating pollution. (44) NPDES has a required self-reporting provision, which requires polluters to report their waste to their state governments. (45) They must prove their levels of effluent discharge based on each particular facility. (46) So...