April 30, 2020

ELI Member Breaking News Event

In a 6-3 decision written by Justice Breyer, the U.S. Supreme Court in County of Maui v. Hawaii Wildlife Fund held that the Clean Water Act (CWA) requires a National Pollutant Discharge Elimination System (NPDES) permit when there is the “functional equivalent of a direct discharge” which may include the addition of pollutants to surface waters via groundwater.

The majority held that what is “functional equivalent” to a direct discharge will be fact-specific and a variety of factors may need to be considered, though the majority says time and distance will be the most important factors in most cases.

How long is too long, or how far is too far? This is left undefined and largely up to the courts, who in turn will be expected to provide guidance through decisions in individual cases. These rulings are expected to eventually lead to more refined principles. Furthermore, the majority states that the Environmental Protection Agency (EPA) can provide administrative guidance in a variety of ways.

This decision may have created a Rapanos-like, SCOTUS-made standard, which will result in years of administrative actions and litigation. Join ELI and leading experts as they explore the extent of the functional equivalent, and the practical implications and next steps for facility compliance and permitting, enforcement and citizen suits, and potential future EPA administrative actions. Panelists shared how they anticipate seeing this play out in courts, noted the high points of the decision, and dove into the future of the Clean Water Act.

Panelists:
Samuel L. Brown
, Partner, Hunton Andrews Kurth, Moderator
Daniel E. Estrin, General Counsel & Advocacy Director, Waterkeeper Alliance
Royal C. Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy, Stetson University College of Law
Elbert Lin, Partner, Hunton Andrews Kurth
Hilary Meltzer, Deputy Chief, Environmental Law Division, New York City Law Department

Materials:
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