Join Aspect Stormwater Experts (Virtually) at NEBC Stormwater Conference Thursday September 10

Touted as “The State’s Largest and Most Comprehensive Stormwater Conference,” the Northwest Environmental Business Council (NEBC) will host the Managing Stormwater in Washington state conference on Thursday, September 10th. For the first time, this conference will be held virtually, and Aspect is proud to be a premier sponsor of the event again.

This focused one-day conference is Washington’s leading stormwater event, convening regulated companies, governments, solution providers, and regulators for learning, networking, and business development. The conference’s educational sessions will cover both fundamental and advanced topics in the areas of industrial, construction, and municipal stormwater management. Aspect’s stormwater professionals Owen Reese, James Packman, John Knutson, and Erik Pruneda and will also be contributing to three of the sessions.

Owen will be part of the panel during the conference’s Featured Plenary Session, The Impact of Third-Party Lawsuits. Clean Water Act lawsuits brought by public interest groups have become an effective enforcement tool for stormwater permit compliance. Functioning as a supplement to agency enforcement efforts and feared by regulated industry, these citizen suits can lead to unwanted scrutiny and often carry stiffer penalties than an agency enforcement action. The panel of experts will shed light on the citizen suit provision of the Clean Water Act, causes and timing, and what you can expect if you find yourself in trouble.

James will moderate the Municipal Fundamentals session, where attendees can gain a thorough understanding of the basic elements of municipal stormwater management including general permit requirements and enforcement; watershed planning; source control; creating Stormwater Pollution Prevention Plans (SWPPPs); proper sampling techniques; and the most common Best Management Practices (BMPs) in municipal settings.

John and Erik will be presenting on the Keys to Successful Infiltration, where they will discuss the recently published Infiltration Standard Operating Procedures (SOPs) that Aspect developed for the Port of Seattle’s Seattle-Tacoma International Airport. The SOPs provide a holistic process for planning infiltration system and dive into the details on field testing and using test information to support design.

Learn more about the conference HERE.

Key U.S. Supreme Court Decision on Groundwater and the Clean Water Act

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Groundwater flow path from the County of Maui’s Wastewater Reclamation Facility to the Pacific Ocean. This facility is the subject of the U.S. Supreme Court case. An extensive hydrogeologic study was completed to map how pollutants travel through groundwater to the Ocean. Source: Lahaina Groundwater Tracer Study

On Thursday, April 23, the U.S. Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund, setting an important, but difficult to implement, precedent for determining when National Pollutant Discharge Elimination System (NPDES)[1] permits are required for discharges to groundwater.

How this Case Came to Be

The County of Maui discharges treated municipal wastewater to the ground through four wells about a half-mile from the Pacific Ocean. Multiple environmental groups sued under the Clean Water Act, alleging that the discharge required an NPDES permit.

The U.S. District Court agreed with the environmental groups, concluding that a permit was required because the discharge was “functionally one into navigable water.” The Ninth Circuit Court affirmed, establishing a test that permits are required when “pollutants are fairly traceable from the point source to a navigable water.”

The County appealed to the U.S. Supreme Court. EPA weighed in, offering an Interpretive Statement that concluded that all releases of pollutants to groundwater are excluded from the Clean Water Act’s permitting program, “regardless of a hydrologic connection between the groundwater and a jurisdictional surface water”.

The Supreme Court set aside the prior approaches by the District Court and Ninth Circuit, and did not give deference to EPA’s opinion, instead crafting their own solution that NPDES permits apply “to a discharge (from a point source) of pollutants that reach navigable water after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

In a recent blog post, attorneys from Stoel Rives view the Court’s decision as taking the middle ground, resulting in the need for potentially difficult case-by-case evaluations based on the non-exclusive list of seven factors the Court defined as important for functional equivalence:

1. Transit time

2. Distance traveled

3. The nature of the material through which the pollutant travels

4. The extent to which the pollutant is diluted or chemically changed as it travels

5. The amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point sources

6. The manner by or area in which the pollutant enters the navigable waters,

7. The degree to which the pollution (at that point) has maintained its specific identity

Hydrogeologic Science to Increase in Relevance

The opinion established time and distance as the most important factors in most, but not all, cases.

This emphasis will likely prove problematic, because time and distance, while important, are often not enough, by themselves, to resolve the question of whether pollutants are being transported to a surface water. Should it matter how close (in time or distance) a discharge is to a surface water, if the subsurface conditions provide adequate treatment? In many cases, the other factors identified by the court may prove more important. These questions will likely only be resolved through hydrogeologic studies, and in many cases litigation, at the expense of the individual dischargers.

Implications for Pacific Northwest Businesses and Municipalities

This decision has relevance to businesses and municipalities in the Pacific Northwest that discharge stormwater or wastewater to ground. We expect to see increased attention from regulatory agencies and environmental groups focused on discharges to groundwater. In particular, facilities that are currently exempt from the Industrial Stormwater General Permit because they only discharge to ground should carefully examine their discharge relative to this decision.

To learn more and discuss the relevance of this case further, contact Senior Associate Water Resources Engineer Owen Reese at oreese@aspectconsulting.com or 206-838-5844.

[1] NPDES is the federal program that regulates the discharge of pollutants to waters of the United States.