Uncharted Waters: Navigating the Supreme Court's New Clean Water Act Permitting Test [July 30, 2020] [open pdf - 731KB]
From the Document: "The U.S. Environmental Protection Agency (EPA) continues to grapple with how to implement the Supreme Court's April 2020 decision in 'County of Maui v. Hawaii Wildlife Fund'. 'Maui' introduced a new multi-factor test for determining whether the Clean Water Act (CWA) applies to pollutant discharges that migrate through groundwater to navigable surface waters. The 'Maui' Court rejected EPA's 2019 interpretive guidance that categorically excluded point source pollutant discharges to groundwater from the CWA permitting program. In a 6-3 ruling, the Supreme Court held that the CWA requires a permit for a direct discharge or the 'functional equivalent of a direct discharge' of pollutants from a point source into navigable waters. EPA has not formally responded to 'Maui' through the issuance of guidance or regulations. Absent such a response or legislative action, regulated entities, state agencies, and federal courts are tasked with clarifying and applying the Court's 'functional equivalent' test. This Sidebar discusses the 'Maui' decision and highlights its potential effects on current and future litigation over the scope of CWA jurisdiction over what qualifies as a 'functional equivalent' of a direct discharge of pollutants into navigable waters."
CRS Legal Sidebar, LSB10528
Congressional Research Service: https://crsreports.congress.gov/