Issue: Maui County v. Hawaii Wildlife Fund — NPDES Permitting and Functional Equivalent Discharge

In 2018, the U.S. Supreme Court agreed to hear the case Maui County v. Hawaii Wildlife Fund. The case asked whether the Clean Water Act requires a permit when pollutants that originate from a nonpoint source can be traced to reach navigable water through mechanisms such as groundwater.

After the case was brought to the Supreme Court, the National Ground Water Association and the Water Systems Council filed an amicus brief that argued the release of pollutants by Maui County was covered by the nonpoint source provisions contained in 33 U.S.C. § 1329 of the Clean Water Act. Applying the NPDES (National Pollutant Discharge Elimination System) provisions in the Clean Water Act to releases to groundwater would both disrespect the clear structure of the act and prove difficult in practice, according to the brief.

In a 6-3 decision, the court ruled that nonpoint discharges require a permit when they are the “functional equivalent of a direct discharge”, a new test defined by the ruling.

Since the ruling, NGWA has been working with partner organizations and the U.S. Environmental Protection Agency to draft practical and “real-world” guidance to implement the decision made by the Supreme Court. In January of 2021, the EPA published its initial guidance, which NGWA assessed as too vague and produced without sufficient input from groundwater stakeholders.

In July of 2021, NGWA sent a letter to the EPA urging them to completely rescind the current guidance and work with stakeholders on producing a more productive and field-friendly guidance document.

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