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In the Maui County case, the US Supreme Court ruled that discharges to groundwater via a point source (e.g. an industrial facility or wastewater treatment plant) that reach a surface water can be regulated under the Clean Water Act. Typically, only point discharges to a navigable water are regulated under the Clean Water Act (e.g. need NPDES permits). However in an unusual 6-3 decision, the United States Supreme Court ruled for the environmental group that was the plaintiff and potentially changed how companies will need to think about their regulatory compliance. Sean Herman, an Associate with Hanson Bridgett, broke down the decision and explained the impact for companies across the country. As Sean noted in his comments, the decision by the US Supreme Court does not create the certainty that companies crave for their environmental compliance programs, but leaves them potentially open to lawsuits and enforcement actions. There remains significant ambiguity in how to apply the Courts’ opinion regarding discharge to navigable waters.

A couple interesting nuggets:

  • Justice Kavanaugh relied on the late Justice Scalia’s opinion in the Rapanos case to side with the majority
  • Seven criteria were cited by the Supreme Court to determine a functionally equivalent discharge
  • Still up to technical and legal experts plus the courts to figure out the applicability to companies’ environmental compliance obligations for industrial wastewater and stormwater permits (e.g. NPDES permits)

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