May 8, 2020 -- Client Alert
The United States Supreme Court recently issued a 6-3 decision in County of Maui v. Hawaii Wildlife Fund holding that the Clean Water Act (“CWA” or “Act”) requires a permit for a point source that emits pollutants into navigable waters through groundwater if the emission is the “functional equivalent” of a direct discharge from the point source into navigable waters. The decision establishes a new test further defining the scope of water discharges which require a permit under the CWA. The Court declined to elaborate a precise test for “functional equivalent,” but left the standard for elaboration “through decisions in individual cases.” Accordingly, agencies will need to be mindful that in many cases they will need a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of effluent through groundwater and for groundwater recharge projects. Failure to obtain a NPDES permit when required can result in fines, injunctive relief and exposure to attorney fee awards.