On April 23, the United States Supreme Court issued its decision in the case County of Maui, Hawaii v. Hawaii Wildlife Fund et al. related to requirements for National Pollutant Discharge Elimination System (NPDES) permits for discharges of wastewater to groundwater. In a 6-3 decision, the Supreme Court ruled, “We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” With the ruling, the Supreme Court appears to have significantly narrowed the Ninth Circuit’s standard of “fairly traceable discharges” (which created a broad definition of sources) to a new standard of “functional equivalent direct discharge” that will still need to be evaluated and more clearly defined. However, the Supreme Court also rejected the U.S. EPA’s position that there is no NPDES jurisdiction over discharges to groundwater.
What happens next? The case has been remanded back to the Ninth Circuit for further proceedings. The Supreme Court also states that courts can provide guidance through individual case decisions and that the EPA can provide administrative guidance by issuing individual or general permits and by developing general rules. Barr will closely monitor what, if any, rules or guidance the EPA develops in response to this decision to better define the new standard.
On April 30, Barr will host a free webinar that will suggest how to assess and address potential risk at your site while the EPA develops additional guidance. Click here to register for the webinar.
For more information, please contact Nick Nelson at 952-832-2701 or nbnelson@barr.com.