Drew Silton Quoted in Law360 Regarding Maui Groundwater Case Ruling

Law360 quoted Beveridge & Diamond Principal Drew Silton (Washington, DC) regarding a federal trial court’s application of the U.S. Supreme Court's landmark ruling that Clean Water Act permits may be required for some facilities that discharge pollution into groundwater, in "3 Questions Left After Maui Groundwater Case Ruling."

U.S. District Judge Susan Oki Mollway ruled that discharges from Maui County's Lahaina Wastewater Reclamation Facility injection wells are "the functional equivalent" of a discharge directly into federal navigable waters and therefore are subject to permitting requirements under the Clean Water Act. However, Judge Mollway's decision didn't seem to take into account practical when it applied the Supreme Court’s functional equivalence test, Drew commented.

"If I'm the plant operator, can I reasonably bring myself into compliance? Can I actually make informed operational decisions in order to avoid violating my permit limits?" he asked. "That's the lens I tend to look at these issues through. And reading through this opinion, it seems like a much more abstract exercise, and the issues were not analyzed in the context of how this works with the permitting requirements that will come on the back end of it."

Drew cautioned that Judge Mollway's decision is probably the first of many to come, but that it will figure prominently in upcoming litigation because it first ruling that applies the Supreme Court’s Maui test.

"At this point, it's a sample size of one, and by virtue of being the one, it will take on outsized significance," he said. "It is going to be the benchmark in the short term."

He explained that the EPA’s best course of action would be to craft a formal rule based on the Supreme Court's opinion, but given the legal and regulatory complexities that have defined the efforts to create a lasting Waters of the U.S. rule, the Biden administration is less likely to take that approach.

"The best thing would be to have a binding regulatory definition that really specifies how these factors work," Drew concluded. "Short of that, really good, permanent guidance both for their own permit writers and for states' programs would be helpful."