Misery may love company but this NGO's attempt to prove two golf courses meet the "functional equivalence" test in the same case seems doomed.

Some of you may recall that late last year an NGO filed a lawsuit against an operator of a wastewater treatment facility in the mountains of Montana alleging that the reuse of water treated by the facility was the "functional equivalent" of a direct discharge of pollutants to a Water of the United States.  See https://insights.mintz.com/post/102hedh/another-maui-case-in-the-mountains.

Because defending oneself against such allegations costs hundreds of thousands of dollars, most of these cases settle.  But this defendant is actually defending itself and, so far, the Federal Judge assigned the case doesn't seem enthralled with the NGO's suggestions.

Now the NGO is seeking to add another defendant to the same lawsuit.  As in other cases of its kind, neither EPA nor the state environmental regulators have asserted that either defendant is anything other than in compliance with federal and state law. 

Law 360 reports that that the NGO's executive director says that both defendants have "golf courses [that] are being over-irrigated."  Apparently the NGO believes that the overirrigation of a golf course with treated water is the functional equivalent of a direct discharge of pollutants to a Water of the United States.  In Maui, the Supreme Court said that functional equivalents of a direct discharge to a Water of the United States are prohibited by the Federal Clean Water Act if they aren't covered by a Federal NPDES permit.

We'll see whether the NGO can satisfy the functional equivalence test with respect to the irrigation of these golf courses.  Assuming the inevitable challenge to the Biden Administration EPA's attempt to determine the reach of the Clean Water Act doesn't get there first, one of the cases prompted by the Supreme Court's Maui decision is going to find its way to a Supreme Court with a much different composition than the Supreme Court that, in Maui, suggested citizen suit plaintiffs use litigation to do what Congress should have done long ago. 

But if the Supreme Court's Maui decision was clear about anything, it is that the application of the Court's multi-faceted "functional equivalence" test requires a fact specific inquiry of the sort that does not allow the "two birds with one stone" approach being tried by the NGO here.    

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