California Water Views

Last week, the U.S. Supreme Court issued a long-awaited decision in County of Maui v. Hawaii Wildlife Fund et al., 590 U.S. __ (2020), in which it determined that the Clean Water Act (CWA) requirements for a National Pollutant Discharge Elimination System (NPDES) permit for point source discharges of pollutants do apply in certain circumstances to effluent that reaches waters of the United States via groundwater. But under what circumstances? Plaintiff environmental groups argued for the Ninth Circuit’s decision that CWA permitting requirements apply when effluent in a navigable water is “fairly traceable” through groundwater to a point source. The County of Maui, however, argued for a bright-line test, pursuant to which no NPDES permit would be required unless a point source directly discharges into navigable water (also known under the CWA as a “water of the United States”). In a 6-3 decision, the Supreme Court rejected both tests proposed by the parties and aimed for the middle, holding that the CWA requires a NPDES permit when a direct discharge to groundwater “is the functional equivalent of a direct discharge from the point source into navigable waters.”

To further explore this important decision, please click here to read our full eAlert on the Maui case.