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

What is the "Functional Equivalent" of a Direct Discharge?

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, July 29, 2020

Recorded event now available

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Program Materials

This CLE webinar will discuss the Supreme Court’s decision in County of Maui, Hawai'i. v. Hawai'i Wildlife Fund, which sets forth a new test for when discharges to jurisdictional waters via groundwater require NPDES permitting under the Clean Water Act (CWA): when the discharge to groundwater is the "functional equivalent of direct discharge." This program will discuss and debate the critical issues, the current state of the law, what criteria will likely be relevant to the “functional equivalence” analysis, and implications for the regulated community.

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.

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Outline

  1. Overview of CWA and groundwater discharge issues
  2. History of County of Maui v. Hawai’i Wildlife Fund, Circuit Split and EPA’s conflicting guidance
  3. Functional equivalence test
  4. Practical considerations and implications to industry and the regulated community

Benefits

The panel will review these and other relevant topics:

  • What is the functional equivalence test from County of Maui v. Hawai’i Wildlife Fund?
  • How will County of Maui v. Hawai’i Wildlife Fund impact the regulated community?
  • What is the current state of the law?
  • What are the best strategies for counseling clients to avoid civil penalties and citizen enforcement?

Faculty

Bell, Sarah
Sarah Peterman Bell

Partner
Farella Braun + Martel

Ms. Bell focuses her practice on environmental and natural resources litigation and counseling in environmental...  |  Read More

Berman, Amanda
Amanda Shafer Berman

Counsel
Crowell & Moring

Ms. Berman draws on her extensive appellate and district court experience to achieve the best possible outcome for...  |  Read More

Jacobson, Rachel
Rachel Jacobson

Special Counsel
Wilmer Cutler Pickering Hale and Dorr

Ms. Jacobson advises clients facing complex challenges related to compliance with state and federal environmental laws,...  |  Read More

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