Supreme Court Clean Water Act Decision April 23, 2020: What Does it Mean for Future Groundwater Permitting?

June 10, 2020

Speakers
Margaret Fawal
Katherine Sochacki
Nicolas Frederick

Moderator
Fred R. Wagner

On April 23, 2020, the U.S. Supreme Court issued a decision in the County of Maui v. Hawaii Wildlife Fund, a much-watched case out of the Ninth Circuit involving the scope of the Clean Water Act’s Section 402 permitting requirements for point source discharges. In the case, the Supreme Court determined whether a Section 402 permit is required when pollutants originate from a point source but are conveyed to navigable waters via groundwater (this has also been referred to as the “conduit theory”). The Court found that the CWA can apply to the pollution that travels through groundwater. However, the Court significantly narrowed the standard that the Ninth Circuit used when it upheld the conduit theory. The Supreme Court ultimately designed its own test, concluding that the CWA requires a permit if "the addition of the pollutants through groundwater is the functional equivalent of direct discharge from the point source into navigable waters." While the Court identified a number of factors that may be relevant to determining what is the “functional equivalent of a direct discharge,” including both time and distance, it acknowledged that the application of this new standard will be left to the lower courts and regulators on a case-by-case basis.

Long story short, as the Court acknowledged in its opinion (and as criticized in the dissents written by Justice Thomas (and joined by Justice Gorsuch) and by Justice Alito), what constitutes a “functional equivalent of a direct discharge” will have to be determined on a case-by-case basis. While the Court provided some guidance in terms of what factors may be relevant, it will be up to the lower courts and regulators, including EPA, to make these determinations.

View the presentation materials from our speakers below