Willa Perlmutter and Joe Matteo Outline Who Will and Won’t Need a Discharge Permit Under the CWA

In an article for North American Mining, attorneys Willa Perlmutter and Joe Matteo discuss two cases that address some of the vagaries of when a National Pollutant Discharge Elimination System (NPDES) permit is or isn’t required under the Clean Water Act (CWA). In general, the CWA prohibits an operator from discharging pollutants into waterways from a point source (pipe, ditch, canal, etc.) without an NPDES permit.

In Stone v. High Mountain Mining, private citizens and environmental groups sued a mining company on the grounds that polluted water stored in a mine’s settling ponds had seeped out of the ponds and entered a nearby river. The plaintiffs argued that the ponds constituted a point source requiring an NPDES permit.

In County of Maui, Hawaii v. Hawaii Wildlife Fund, the U.S. Supreme Court considered the question of whether the CWA requires an NPDES permit for pollutants emitted from a point source that then travel through nonpoint sources before reaching a waterway, concluding that a permit is required if the movement of pollutants through groundwater can be shown to be the “functional equivalent” of a direct discharge from a point source. The court provided a list of seven factors to determine the equivalency, deeming the first two—transit time and distance—to be the most important.

Based on three of the seven factors, the lower court in Stone ruled against the mining company, but the Tenth Circuit Court of Appeals found that the lower court erred by not considering all of the factors and sent the case back to the lower court for a more rigorous analysis that considers all seven.

The authors conclude: “It will be worth watching to see what the lower court concludes when it reviews the factors more thoroughly. For now, though, there are two takeaways to consider. First, at least in the Tenth Circuit, litigants should take care to address all the Maui factors in similar cases. Second, despite the Supreme Court’s direction in Maui that the first two factors should be given more weight, this does not mean that they will necessarily override the next five factors.”

Read the full article here.