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Supreme Court Affirms Need for NPDES Permits in Maui Case

Updated: Apr 27, 2020

The Supreme Court today, in a 6-3 ruling, held that discharges to WOTUS via groundwater are covered under the CWA "when there is a functional equivalent of a direct discharge." The Court concluded that "an addition [of pollutants] falls within the statutory requirement that it be 'from any point source' when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means." Here's a link to the decision: https://www.supremecourt.gov/opinions/19pdf/18-260_jifl.pdf


This very important ruling affirms what has essentially been the law for many years and avoids creating a giant loophole in the CWA that would have encouraged dischargers to pump into the ground to avoid a need for an NPDES permit. Importantly, the decision rejects the EPA's recent interpretation of the CWA, which would have declined to assert jurisdiction over any discharge that first touches groundwater.


The decision will require some sussing out to determine the outer limits of the "functional equivalent" test, but the courts have been doing that for years, so I don't see a major change in the current jurisprudence on this issue.


Interestingly, Kavanaugh, in his concurring opinion, heavily cites Scalia's plurality opinion from Rapanos. This could be Justice Kavanaugh telegraphing where he would vote if WOTUS ever makes it back to the Supreme Court. Not surprising, but interesting nonetheless.


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