New SCOTUS test for NPDES permitting under the CWA: County of Maui, Hawaii v. Hawaii Wildlife Fund et al.

Hogan Lovells

On 23 April 2020 the Supreme Court, in a 6-3 opinion written by Justice Stephen Breyer, waded carefully into the very-muddied waters of Clean Water Act (CWA) jurisprudence when it issued a new test to determine when the statute requires point sources to secure a National Pollutant Discharge Elimination System (NPDES) permit. The Court, in County of Maui, Hawaii v. Hawaii Wildlife Fund et al., 2020 WL 1941966 (2020), held that a NPDES permit is required when "there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge" – in other words, "when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly the same means."

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