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Uncharted Waters: Navigating the Supreme
Court's New Clean Water Act Permitting Test
July 30, 2020
The U.S. Environmental Protection Agency (EPA) continues to grapple with how to implement the
Supreme Court's April 2020 decision in County of .oVaui v. h-awaii Tildiifie Fund. Maui introduced a new
multi-factor test for determining whether the Clean Water Act (CWA) applies to pollutant discharges that
migrate through groundwater to navigable surface waters. The Maui Court rejected EPA's 2019
interpretive guidance that categorically excluded point source pollutant discharges to groundwater from
the CWA permitting program. In a 6-3 ruling, the Supreme Court held that the CWA requires a permit for
a direct discharge or the functional equivalent of a direct discharge of pollutants from a point source
into navigable waters.
EPAhas not formally responded to Maui through the issuance of guidance or regulations. Absent such a
response or legislative action, regulated entities, state agencies, and federal courts are tasked with
clarifying and applying the Court's functional equivalent test. This Sidebar discusses the Maui decision
and highlights its potential effects on current and future litigation over the scope of CWAjurisdiction over
what qualifies as a functional equivalent of a direct discharge of pollutants into navigable waters.
The CWA's Permitting Requirements
The Federal Water Pollution ControlAct, commonly referred to as the Clean WaterAct (CWA), prohibits
any discharge or addition of any pollutant to navigable waters from any point source without a
permit. The CWA defines pollutant broadly to include toxins such as sewage and radioactive waste,
as well as more common elements such as rock, sand, cellar dirt, and heat. The act defines navigable
w aters as waters of the United States and a point source as any discernible, confined and discrete
conveyance, including.., any pipe, ditch, channel, [or] tunnel.
The CWA allows certain discharges of point source pollutants if authorized by a CWA permit issued under
the National Pollutant Discharge Elimination Sys tem (NPDES). CW.A Section 402 requires point source
dischargers to obtain NPDES permits, which set pollution limits-known as effluent limits-on the type
and quantity of pollutants that dischargers can release into navigable waters.
The CWA does not require NPDES permits for nonpoint source discharges. Nonpoint source pollution is
regulated through state programs under CW-AS-ction 319 and other state and federal laws. If EPA
Congressional Research Service
https://crsreports.congress.gov
LSB10528
CRS Legati&sebar
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