District Courts Continue to Struggle with the Reach of the Clean Water Act, This Time on Cape Cod

In April 2020, the US Supreme Court answered a yes or no question with a maybe. The question: A discharge into groundwater requires a permit under the Federal Clean Water Act.

Both before and after the Supreme Court ruling, NGOs filed civil lawsuits under the Clean Water Act, arguing that discharging treated water from onshore wastewater treatment plants requires a permit under federal law.

The Supreme Court’s equivocal answer to the question that was posed seemed to some to be a productive step because Judge Breyer, writing in favor of the majority, identified seven factors that need to be considered by future courts to determine whether a particular discharge in the groundwater was covered by the Federal law. The majority stressed that “time [for the discharged pollutants to get to a navigable water]”and” distance “would be the” most important in most cases “factors.

The Court also stipulated that lower courts would apply the identified factors to establish a body of jurisprudence indicating what was covered and what was not.

I did not agree. https://www.mintz.com/sites/default/files/media/documents/2020-04-29/Law360%20-%20Justices%20Leave%20Waters%20Muddy%20In%20County%20of%20Maui%20Sewage%20Case .PDF.

Earlier this year, a Massachusetts federal judge dismissed a lawsuit filed by the Conservation Law Foundation against the city of Barnstable based on factors identified by the Supreme Court as “most important.” In Barnstable, treated effluent takes over 21 years to travel approximately 1.5 miles to the closest water in the United States. Of course during that trip the treated effluent mixes with groundwater and other things that impacted those groundwater. The judge ruled that there was no way that the treated effluent discharge could be the functional equivalent of a discharge into a U.S. water under those circumstances.

CLF has asked the Judge to reconsider his decision and, if not, CLF will certainly appeal to the First Circuit Court of Appeal. Among other things, CLF claims it is entitled to the discovery before the strength of its case is tested.

I think CLF could very well win this battle on the way to losing this particular war.

And here lies the real injustice of the current state of the law. Any recipient of a civil lawsuit notice, however fragile, faces the choice between the high costs of defending themselves, as the City of Barnstable is doing here, or paying the ransom demanded by the plaintiff.

In the next term, the Supreme Court will take another bite of the Clean Water Act apple. Perhaps that decision will prompt Congress to finally provide the clarity on the scope of the Clean Water Act that everyone deserves.

CLF respectfully requests that the Court grant the requested remedy because the order contains manifest errors of fact and law and the rejection of the Court, without any oral discussion or possibility to modify the appeal, is manifestly unfair to CLF “, reads in the motion.

In principle, the dismissal order “contains manifest errors of law because: (1) it misunderstands the appeal criterion; (2) resolves factual disputes in favor of the Defendant; (3) incorrectly applies the material law; (4) abuses its discretion by not granting CLF permission to modify the Complaint in its Order; and (5) causes manifest injustice ”.

And specifically in relation to the Maui precedent, CLF claims that the district court misapplied that ruling by improperly reducing the non-exhaustive list of Maui factors relevant to transit time and misinterprets the role of state regulation of water pollution. underground in this litigation.

https: //insideepa.com/daily-news/massachusetts-case-tests-justic …….

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