May 04, 2020

Supreme Court Establishes Permitting Standard for Discharges to Groundwater

Seth P. Waxman, Daniel S. Volchok, Michael Connor, Rachel Jacobson, H. David Gold, Michael J.P. Hazel, and Benjamin Hanna

On April 23, 2020, the Supreme Court ruled in County of Maui v. Hawai’i Wildlife Fund that a federal permit is required under the Clean Water Act (CWA) when a discharge to groundwater is the “functional equivalent” of a discharge directly from a point source into navigable water. With this highly anticipated decision, the Court embraced a middle ground, maintaining the CWA’s underlying goal of regulating identifiable sources of pollutants entering navigable waters, but stopping short of requiring a permit for any release of pollutants that reaches navigable waters regardless of the time elapsed or the distance traveled.

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