The New Clean Water Act ‘Functional Equivalent’ for Indirect Discharge Permitting – Update from Manko Gold Katcher Fox

June 4, 2020

Megan A. Elliott and Bryan P. Franey

The Legal Intelligencer

In April, the U.S. Supreme Court established a new standard under the Clean Water Act when it vacated and remanded a closely watched U.S. Court of Appeals for the Ninth Circuit decision that pertained to the federal government’s authority to regulate the discharge of pollution from a point source through groundwater to navigable waters.  See County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 590 U.S. ___ (Apr. 23, 2020). The central issue of the case was whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source such as groundwater.  The court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”  Because the “functional equivalent” standard is somewhat amorphous, the court introduced several factors (referred to hereafter as the Breyer Factors) to aid courts, the U.S. Environmental Protection Agency (EPA) and the regulated community in making permitting determination

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