Graham Sustainability Institute

Groundwater Ruling - Supreme Court

Wednesday, April 29, 2020

Photo of Julie Michalski, Dow Fellow, UM Alumna

Julie Michalski, Dow Fellows Alumna, Associate at Steptoe & Johnson, LLP
J.D., University of Michigan Law School, 2019, cum laude

On April 23, 2020, the United States Supreme Court handed down its opinion in the County of Maui v. Hawaii Wildlife Fund. The court determined that in certain situations the Clean Water Act (CWA) requires a permit for pollutant discharges to groundwater, after considering two different viewpoints:

  1. The county of Maui and the US Environmental Protection Agency (EPA) argued that permits were required only for direct discharges of pollutants to navigable waters
  2. Environmental groups urged the Court to accept the Ninth Circuit's standard that a permit is required where pollution of "navigable waters" is "fairly traceable" (through groundwater) to a point source.

Instead of adopting either view, the Court fashioned an amorphous standard, holding that a permit is required where the addition of pollutants through groundwater is the "functional equivalent" of a direct discharge into navigable waters, and remanded the case to the Ninth Circuit.

Source: U.S. Supreme Court Wades into Groundwater with County of Maui v. Hawaii Wildlife Fund, Leaves Muddy Path Forward
Authors: Julie Michalski, Cynthia L. Taub, Anthony G. Hopp
Cty of Maui v. Hawaii Wildlife Fund, No. 18-260, slip op. (U.S. April 23, 2020)
Publisher: Steptoe & Johnson LLP

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