Reexamining Indirect Discharges and the Clean Water Act After County of Maui, Hawaii v. Hawaii Wildlife Fund

Description

On Apr. 23, 2020, the U.S. Supreme Court issued its opinion in Maui County, providing some clarity, though not certainty, regarding how federal CWA permitting requirements apply to discharges that reach surface water via groundwater. The Court declined to follow the standard set forth in the underlying Ninth Circuit opinion, but likewise declined to adopt the position set forth in the EPA’s guidance on the issue, instead attempting to strike a middle ground by articulating a new standard—the “functional equivalent” standard—that will allow regulatory agencies to require permits for some, but likely not most, discharges of pollutants to groundwater.

The Maui County case involved wastewater discharges to four injection wells, which resulted in seepage of hazardous materials to the Pacific Ocean. In February 2018, the Ninth Circuit upheld a Hawaii federal district court’s ruling that such releases to jurisdictional waters constituted point source discharges subject to the CWA’s NPDES permitting requirements because they were “fairly traceable” to the upstream point source.

The Supreme Court articulated a narrower test than the Ninth Circuit, ruling that the CWA regulates pollutant discharges determined to be the "functional equivalent" of a direct discharge into navigable waters, and identified seven non-exclusive factors that may be relevant to future determinations of whether a discharge to groundwater requires an NPDES permit.

Listen as our authoritative panel of environmental practitioners discusses the critical test in this decision, the implications for industries across the economic spectrum, and the future of groundwater discharge enforcement under CWA.