American Bar Association
 
Water Quality and Wetlands

Water Quality and Wetlands


Message from the Co-Chairs



Welcome to the Water Quality and Wetlands Committee! Our committee monitors a broad range of issues arising from the federal Clean Water Act and its implementation by EPA and the states and the effect of those measures on surface waters and wetlands. Hot topics the committee follows for its members include the ongoing controversy as to the reach of the Clean Water Act under the EPA and Army Corps rule defining waters of the United States. Closely related is the debate over the role of groundwater in implementing the National Pollutant Discharge Elimination System (NPDES). Discharges of pollutant through groundwater to a surface water—a water of the U.S.—have been held by some courts to be tantamount to a direct discharge. Other courts have concluded that the Legislative history of the Clean Water Act confirms a jurisdictional barrier holding that discharges to groundwater are not discharges to waters of the U.S. Wetlands protection is another closely related topic of interest. The jurisdictional reach of the Clean Water Act over wetlands, and subsequently the protection afforded them, is also determined by the definition of waters. The committee also monitors state and federal promulgation of water quality standards and criteria, the listing of surface waters as impaired and in need of a pollutant budget called a total maximum daily load, and the development of effluent limit guidelines by EPA which directly affect permit limits in industry NPDES discharge permits.


The committee keeps its members aware of the various goings on affecting these topics through the committee newsletter, updates to the committee website, special programs including live webinars, email blasts and the occasional tweet. If you would like to join the committee, volunteer to serve as part of committee leadership, submit an article for the newsletter or share an idea for a program you would like to see, please contact Winston Borkowski at winstonb@hgslaw.com or Gene Wasson at gwasson@brunini.com.


Winston Borkowski and Gene Wasson


Water Quality News and Recent Cases

Florida Seeks 404 Assumption

On March 23, 2018, Florida Governor Rick Scott signed into law HB 7043 granting the Florida Department of Environmental Protection (FDEP) explicit authority to assume the federal Clean Water Act (CWA) Section 404 permitting program and to adopt, by rule, any federal criteria or regulations necessary to obtain assumption. In order to assume Section 404 permitting authority, however, Florida must first submit to the EPA the following: a letter from the Governor of Florida requesting program approval; a complete program description, as set forth in 40 C.F.R. § 233.11; an Attorney General's statement, as set forth in 40 C.F.R. § 233.12; a Memorandum of Agreement (MOA) with EPA, as set forth in 40 C.F.R. § 233.13; an MOA with the U.S. Army Corps of Engineers (Corps), as set forth in 40 C.F.R. § 233.14; and copies of all applicable Florida statutes and regulations, including those governing applicable state administrative procedures.

Currently, FDEP is in the process of working with EPA and the Corps in developing the requisite MOAs, and is preparing to begin rulemaking to adopt the necessary rules for implementing the state 404 permitting program. As soon as the MOAs are executed and rulemaking is complete, Florida will then submit to EPA the formal application package seeking assumption of the federal CWA 404 permitting program. Once the application is deemed complete, EPA has 120 days to review the state program and decide whether to approve or deny the application. If EPA fails to make a decision on assumption prior to the end of the 120-day time period, Florida’s state 404 permitting program will be deemed approved.

Florida anticipates submitting the application package in the fall of this year with EPA making its decision by the end of 2018 or beginning of 2019.

Contributed by Winston Borkowski Committee, Co-Chair

Fourth Circuit Adopts Direct Hydrological Connection Language Rejected By Ninth Circuit

On April 12, 2018, the federal Fourth Circuit Court of Appeals reversed an order of the District Court of South Carolina dismissing a Clean Water Act (CWA) citizen suit complaint based on gasoline flowing from an underground pipeline, through groundwater, to nearby streams. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2018 U.S. App. LEXIS 9144. The Fourth Circuit’s Kinder Morgan opinion relies heavily on the opinion of the Ninth Circuit Court of Appeals in the County of Maui case but adopts the exact test using the exact words—direct hydrological connection--that the Ninth Circuit concluded were absent from the CWA. Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) as modified at 2018 U.S. App. LEXIS 8130.

In Kinder Morgan, several thousand gallons of gasoline were released from an underground pipeline before Kinder Morgan discovered the release, fixed the pipeline and began remediation efforts. Two environmental organizations, Upstate Forever and Savannah Riverkeeper, filed a CWA citizen suit in the federal District Court for the District of South Carolina alleging that, although Kinder Morgan repaired the pipeline, gasoline continued to migrate through groundwater to nearby streams. The District Court dismissed the citizen suit based on lack of federal jurisdiction finding that the alleged violations of the CWA were not ongoing violations and that gasoline was discharged underground to groundwater not to surface waters. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 252 F.Supp.3d (Dist. S. C. 2017).

On April 12, 2018, a three judge panel of the Fourth Circuit Court of Appeals issued an opinion reversing the lower court on both points. Two judges concurred in the opinion but the third judge, Judge Henry F. Floyd, wrote a detailed dissenting opinion agreeing with District Court Judge Henry M. Herlong, Jr. First, the Fourth Circuit concluded that, although the pipeline had been repaired, the CWA violations were ongoing so long as pollutants continued to enter waters of the U.S. that originated from the leaking pipeline. Second, the Kinder Morgan court concluded that a discharge of a pollutant under the CWA need not be a discharge directly to a navigable water from a point source.

The two judge majority of the three judge panel stated, in relevant part: “[W]e hold that a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.” (Emphasis added). It is this exact phrase, “direct hydrological connection,” that the federal Ninth Circuit Court of Appeals concluded was missing from the CWA, and therefore unsupported by law, in the County of Maui case.

In County of Maui, EPA filed a brief as amicus curiae (friend of the court) asserting that its “longstanding interpretation” of the CWA allows EPA to impose NPDES jurisdiction where pollutants from a point source reach a surface water—through groundwater—via a “direct hydrological connection” between the point source discharge and waters of U.S. The Ninth Circuit failed to find any statutory authority for EPA’s “direct hydrological connection” theory of CWA liability stating: “The EPA as amicus curiae proposes a liability rule requiring “direct hydrological connection” between the point source and the navigable water. Regardless of whether that standard is entitled to any deference, it reads two words into the CWA (“direct” and “hydrological”) that are not there.”

Although the County of Maui court held that the words used by EPA (direct and hydrological) cannot be found in CWA, the Ninth Circuit panel created its own test for imposing NPDES jurisdiction based on terms that also cannot be found in the CWA: “fairly traceable” and “functional equivalent.” Nowhere in the CWA does it state that a discharge of pollutants from a point source to waters of the U.S. includes a discharge that is “fairly traceable” to a point source or is the “functional equivalent” of a point source.

A fair reading of the County of Maui opinion suggests that the Ninth Circuit found that the CWA does not restrict NPDES jurisdiction to where there is only a “direct hydrological connection” because no such limiting language may be found in the CWA. The Kinder Morgan court quoted the County of Maui with approval numerous times notwithstanding that the two courts arrived at different conclusions regarding the legal viability of EPA’s direct hydrological connection theory. The Kinder Morgan court did not address the Ninth Circuit’s declaration that the words “direct” and “hydrological” are nowhere to be found in the CWA. In a footnote, the two-judge majority states that it does not see a difference between the two tests: “We see no functional difference between the Ninth Circuit’s fairly traceable concept and the direct hydrological connection concept developed by EPA that we adopt today, which as we explain below includes traceability. In fact, the direct hydrological connection concept may be viewed as a narrower application of the same principle, addressing point source discharges through ground water.” (italics as in original).

The Kinder Morgan majority of two fails to address that: 1) the Ninth Circuit concluded that the words “direct” and “hydrological” are not found in the CWA—such that EPA’s more limited “direct hydrological test” is not supported by law; and, 2) nowhere within the four corners of the CWA will one find the terms favored by the Ninth Circuit: “fairly traceable” or “functional equivalent.” Oddly, although citing to—and largely agreeing with—the County of Maui decision, the Fourth Circuit may have created a split between the two federal appeals courts leaving the U.S. Supreme Court to decide if the CWA expressly provides EPA authority for its direct hydrological connection test.

Contributed by Winston Borkowski, Committee Co-Chair


Who We Are

We are the Water Quality and Wetlands committee.

Committee Resources

    Ocean and Coastal Law and Policy, Second Edition

    Ocean and Coastal Law and Policy, Second Edition

    ISBN: 978-1-62722-743-8, 978-1-62722-744-5 Product Code: 5350253, 5350253EBK 2015, 944 pages Written by practitioners and scholars in the field of ocean and coastal law, this updated edition is an excellent resource for providing an understanding of complex ocean and coastal law and the ongoing efforts ...

Committee Chair(s)

Co-Chairs:

Borkowski, Winston
Wasson, Eugene

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Modified by Kevin Gordon on May 4, 2018

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