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Volume XI, Number 262

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The End of the Road in Maui?

Late yesterday, Federal Judge Susan Oki Mollway, of the District of Hawaii, ruled that the County of Maui needs a Federal Clean Water Act NPDES permit for its groundwater discharge of treated water from its wastewater treatment facility.

This isn't the first time the Judge has ruled against the County.  The last time the Court's decision was revised by the Ninth Circuit Court of Appeals before it was ultimately remanded by the United States Supreme Court for application of its new seven-factor functional equivalence test of whether a discharge to groundwater is within the reach of the Federal Clean Water Act.

Judge Mollway's decision is the first Federal District Court decision applying the Supreme Court's functional equivalence test.

The Court's fifty-page decision on cross-motions for summary judgment finds in the County's favor with respect to some of those seven factors but concludes that the County's discharge of treated water is within the reach of the Clean Water Act.

Not mentioned at all in the Court's decision is an eighth factor enumerated by the United States Environmental Protection Agency after the Supreme Court's Maui decision -- the design and performance of the system or facility from which a pollutant is released.

EPA's guidance memorandum, issued last January, says that "the composition and concentration of discharges of pollutants directly from a [point source] . . . with little or no intervening treatment or attenuation often differ significantly from the composition and concentration of discharges of pollutants into a system that is engineered, discharged, and operated to treat or attenuate pollutants".

That didn't matter at all to Judge Mollway who found such changes both during and after the discharge of treated water from the County's facility but also found that the treated water was not "devoid of pollutants" and held that the discharge of any pollutants to groundwater is covered by the Clean Water Act when the discharge is ".3 to 1.5 miles" from a Water of the United States and the water containing "pollutants" will take "14 to 16 months on average" to reach the Water of the United States.

I suspect the Ninth Circuit would agree and so this may be the end of the road for the County of Maui. Now EPA and millions of property owners whose discharges to groundwater are not "devoid of pollutants" will need to consider what this first application of the Maui functional equivalence test means for them.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 197
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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