They say that April showers bring May flowers. But this year, our bouquet was certainly not we expected! Please stay safe and well!
 
Developments in municipal law rest for no virus, so we present the latest significant rulings in this May edition of the Miyares and Harrington LLP newsletter. You can continue to stay up-to-date with COVID-19 guidance by reviewing the Client Alerts on our website or by signing up for the Client Alerts.



This month's newsletter features:
  • The Supreme Court Rules that Some Discharges to Groundwater Require a NPDES Permit

  • Resolving Tension Between a Strong Fire Chief’s Managerial Rights and Collective Bargaining Agreements

  • Rapid Fire Update: EPA Issues Final Rule Redefining “Waters of the United States”

  • Trivia
The Supreme Court Rules that Some Discharges to Groundwater Require a NPDES Permit
The federal Clean Water Act, 33 U.S.C. §§1251 et seq., requires a permit for discharges from a point source to “navigable waters,” which do not include groundwater. But what about discharges to groundwater that make their way to navigable waters? We reported in our April 2019 newsletter that the U.S. Environmental Protection Agency had issued an “Interpretive Statement” taking the position that no permit under the National Pollutant Discharge Elimination System (NPDES) was required for discharges to groundwater. Last month, in County of Maui, Hawaii, v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (April 23, 2020), the U.S. Supreme Court disagreed.
 
The County of Maui discharges effluent from its sewage treatment plant into underground wells located approximately one-half mile from the ocean. Environmental groups filed suit for violation of the Clean Water Act, alleging that the County was discharging a pollutant from a point source into navigable waters without a NPDES permit. The allegation was based on a study finding that a significant amount of the effluent was traveling through groundwater and reaching the ocean (a “navigable water”). The district court ruled in favor of the environmental groups and the Ninth Circuit affirmed the lower court’s decision, holding that a permit is required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” Maui appealed to the Supreme Court. The Solicitor General of the U.S. filed an amicus curiae brief supporting Maui, reiterating the position articulated in EPA’s Interpretive Statement.
 
The Court rejected the Ninth Circuit’s test, reasoning that using the “fairly traceable” standard could “allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release...and in highly diluted forms.” However, the Court also rejected EPA’s position, pointing out that it would create a loophole in which a discharger could avoid NPDES permitting requirements by discharging to the ground a few feet away from a navigable water.
 
The Court held that a NPDES permit is required for any point source discharge to groundwater “if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.” The Court did not define “functional equivalent,” however, stating that the determination would be fact-specific. Nevertheless, the decision listed a number of potentially relevant factors, including the distance of the discharge from navigable waters and the time required for pollutants to travel thereto. The Court did not state whether Maui’s discharge was the “functional equivalent of a direct discharge,” instead remanding the case for the lower court to make that determination. EPA and the lower courts will now take on the task of parsing the new test’s meaning and practical implications.
Resolving Tension Between a Strong Fire Chief’s Managerial Rights and Collective Bargaining Agreements
The Massachusetts Appeals Court recently issued a decision affirming that Massachusetts Fire Chiefs possess non-delegable management rights with respect to decisions that affect public safety and the management of their departments. However, based on the unique circumstances of the case, Town of Dracut v. Dracut Firefighters Union, IAFF Local 2586, the Court reversed a Superior Court decision (in favor of the Town), and confirmed an arbitrator’s award in favor of the union. The Fire Chief’s broad statutory management rights and his responsibility to protect public safety did not, in this instance, warrant a change of policy that uniquely affected member participation in union meetings.
 
Dracut is served by three Fire Department locations (east, west, and central), which are staffed 24/7. The Town and union included a provision in their 1986 Collective Bargaining Agreement (CBA) that allowed the union to hold its monthly meetings at the central station. Since 1986, members staffed at alternate locations were able to travel to the central location to attend the meeting. If a call for service came in during the meeting, crews would deploy from the central station.  In April 2016, the Fire Chief issued a new policy that prohibited on-duty firefighters who were stationed at the alternate locations from attending the union meetings at the central station. The Chief stated that the policy was adopted because he was concerned about potential response-time delays if crews were departing from the central station and not their geographically closer alternative locations. The policy, however, did not prohibit on-duty firefighters from traveling from alternate locations to attend other events at the central station, including trainings, memorial services, and public relations events. The union grieved the policy and alleged that it violated the CBA; the arbitrator agreed with the union.
 
Dracut appealed the arbitrator’s award to Superior Court. The Superior Court vacated the arbitrator’s award on the ground that the award exceeded the arbitrator’s authority by “infringing on the nondelegable authority of the fire chief” to manage the Department and make decisions regarding public safety. The Appeals Court, however, reversed the Superior Court’s decision. It recognized that the non-delegable authority doctrine requires that some issues be “reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability….” With respect to the Fire Chief, the Appeals Court acknowledged that M.G.L. c.48, §42 (the “strong Fire Chief” statute) grants fire chiefs “full and absolute authority in the administration of the department,” including the authority to make all “rules and regulations for [the Department’s] operations….” The Court was not persuaded, however, that this authority was sufficient to permit a change of policy with respect to attendance at union meetings without bargaining.
 
The Appeals Court held that Dracut did not demonstrate “the existence of a public policy of sufficient weight, or a core managerial function of sufficient gravity, to warrant denying effect to collective bargaining.” The Appeals Court emphasized that the travel ban applied only to union meetings and not to other activities. “A policy this selective is not fundamental to the effective operation of an enterprise.”
Rapid Fire Update: EPA Issues Final Rule Redefining “Waters of the United States”

On April 21, the U.S. Environmental Protection Agency issued a final rule redefining the scope of the “waters of the United States” regulated under the Clean Water Act. The rule shrinks the universe of regulated waters, eliminating (among other things) intermittent streams and wetlands not directly adjacent to other jurisdictional waters. Seventeen states (including Massachusetts) and a host of environmental organizations (including some in Massachusetts) have sued to block the rule, which is slated to become effective on June 22.

Trivia!
 
Question: Before 1959, what was the longest vertical lift bridge in the world?
 
Last issue's question: You may all be binge-watching television, so let’s have a TV-related trivia question. The 2020 Netflix original Spenser Confidential, starring Mark Wahlberg, is based loosely based on a novel by Ace Atkins, the title of which is derived from an MBTA stop. Please name the novel.
 
Answer: Wonderland, based on Robert B. Parker’s Spenser series but written by Ace Atkins after Parker’s death.
 
Winner: Congratulations to Carol Cavanaugh, Superintendent of the Hopkinton Public Schools. Carol was the first among several correct responses.

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