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38 Pace Envtl. L. Rev. 1 (2020-2021)

handle is hein.journals/penv38 and id is 1 raw text is: PACE ENVIRONMENTAL LAW REVIEW Volume 38 Fall 2020 Number 1 ARTICLES The Hallmarks of a Good Test: A Proposal for Applying the Functional Equivalent Rule from County of Maui v. Hawaii Wildlife Fund DAMIEN M. SCHIFF* & GLENN E. ROPERt The Clean Water Act generally requires a federal permit for the discharge of pollutants from any point source to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed directly to regulated waters. But there is much disagreement over the extent to which indirect point- source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the functional equivalent of a direct point-source discharge. Unfortunately, the Court did not define the term functional equivalent, other than to offer a non-exhaustive list of seven factors to consider (emphasizing time and distance), and to admonish lower courts to both respect the states' traditional authority over water pollution and be mindful of avoiding decisions that would encourage evasion of the Act's permitting requirements. To pick up where County of Maui left off, this Article proposes the hallmark interpretation of the functional equivalent test. According to this approach, a pollutant discharge is the functional * Senior Attorney, Pacific Legal Foundation. t Attorney, Pacific Legal Foundation. 1

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