News & Analysis as of

Functional Equivalent

Troutman Pepper

EPA’s New Proposed Maui Guidance: Underwhelming and Sneaky

Troutman Pepper on

On November 20, with no fanfare at all, not even a press release, U.S. Environmental Protection Agency (EPA) issued its Draft Guidance: Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean...more

Allen Matkins

The Still Murky Permitting Requirements Under the Clean Water Act after County of Maui Spawn Highly Fact-Intensive Inquiries

Allen Matkins on

In last year’s Land Use, Environmental & Natural Resources Update 2021 Update, we reported on the U.S. Supreme Court’s decision in County of Maui v. Hawai’i Wildlife Fund (County of Maui), 590 U.S. __; 140 S. Ct. 2778 (2020),...more

Stinson LLP

How Can We Chart a Course on Navigable Waters?

Stinson LLP on

Since the U.S. Supreme Court decided the County of Maui v. Hawaii Wildlife Fund case in April 2020, the legal landscape of "navigable waters of the U.S." has eroded quickly. With Maui, the Supreme Court created a test for...more

Foley Hoag LLP - Environmental Law

Maui’s “Functional Equivalent” Test: Courts Are Still Feeling Their Way

Earlier this month, the 9th Circuit vacated the District Court judgment in a Clean Water Act citizens’ suit, because the basis for the judgment had been undermined by the Supreme Court decision in Maui. The decision is not a...more

Best Best & Krieger LLP

EPA Withdraws Trump-era Guidance on When Groundwater Releases Require Clean Water Act Permits

Withdrawal expands “functional equivalent” test for discharges that the Supreme Court established in County of Maui v. Hawaii Wildlife Fund - The U.S. Environmental Protection Agency has rescinded January 2020 guidance on...more

Mintz

The End of the Road in Maui?

Mintz on

Late yesterday, Federal Judge Susan Oki Mollway, of the District of Hawaii, ruled that the County of Maui needs a Federal Clean Water Act NPDES permit for its groundwater discharge of treated water from its waste water...more

Mintz

Fourteen months later and still waiting for any court to apply SCOTUS's Maui Functional Equivalence Test

Mintz on

In April of 2020, Justice Breyer, delivering the Supreme Court's opinion in Maui v. Hawaii Wildlife Fund, told us that "the traditional common-law method, making decisions that provide examples that in turn lead to ever more...more

Burr & Forman

Keeping the PR in Privilege: Outside Public Relations and the Attorney-Client Privilege

Burr & Forman on

In an earlier edition of the TIPS newsletter, we discussed the importance of outside counsel acting in the role of counsel, and not the role of an insurance adjuster, to preserve the attorney-client privilege over...more

Williams Mullen

EPA Issues Clean Water Act Guidance Regarding Discharges to Groundwater

Williams Mullen on

Section 402 of the Clean Water Act (CWA) prohibits the discharge of any pollutant from any point source to navigable waters (“Waters of the United States” or “WOTUS”) unless authorized by a permit (Section 402 NPDES Permits)....more

Ward and Smith, P.A.

WOTUS Encore: The Fate of the Navigable Waters Protection Rule and Implications for Groundwater

Ward and Smith, P.A. on

It seems like yesterday, but it was actually last summer when the United States Environmental Protection Agency and Army Corps of Engineers published the Navigable Waters Protection Rule, effective June 22, 2020 (the "Rule")....more

Schwabe, Williamson & Wyatt PC

Murky Waters: Assessing EPA’s Draft Guidance on Groundwater Regulation After the Maui County Decision

Late last year, the Environmental Protection Agency (“EPA”) issued a draft guidance intended to assist regulated entities and permitting authorities in applying the U.S. Supreme Court’s decision in County of Maui, Hawaii v....more

K&L Gates LLP

Clean Water Act Permits for Discharges to Groundwater: EPA Issues Guidance on County of Maui v. Hawaii Wildlife Fund

K&L Gates LLP on

On 14 January 2021, the U.S. Environmental Protection Agency (EPA) issued a guidance memorandum on the application of the U.S. Supreme Court’s 23 April 2020 decision in County of Maui v. Hawaii Wildlife Fund (Maui)....more

Wiley Rein LLP

EPA’s Recent Clean Water Act Guidance to Implement the Supreme Court’s Maui Decision

Wiley Rein LLP on

On April 23, 2020, the Supreme Court of the United States issued a groundbreaking ruling in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), holding that a National Pollutant Discharge Elimination System...more

WilmerHale

EPA Publishes Draft Guidance on Applying Supreme Court's Decision in County of Maui v. Hawaii Wildlife Fund

WilmerHale on

The Environmental Protection Agency (EPA) recently published draft guidance on how to apply the “functional equivalent” test created by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). The...more

Morgan Lewis

EPA Narrowly Defines Discharges into Groundwater that Are Subject to Clean Water Act Permitting

Morgan Lewis on

Draft guidance from the US Environmental Protection Agency provides a clearer look at how the agency intends to apply the US Supreme Court's "functional equivalent" analysis to determine when National Pollutant Discharge...more

Beveridge & Diamond PC

EPA’s CWA Groundwater Guidance Says Little, Will Likely Be Rescinded

Beveridge & Diamond PC on

EPA’s recent draft guidance memorandum on applying the Supreme Court’s decision in County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), provides little clarity for determining when a release to groundwater is the...more

Maynard Nexsen

EPA Drafts Guidance on County of Maui’s “Functional Equivalent” Test

Maynard Nexsen on

On Tuesday, December 8, 2020, the U.S. Environmental Protection Agency (EPA) issued a Draft Guidance Memorandum attempting to place the recent Supreme Court decision in County of Maui v. Hawaii Wildlife Fund “into context...more

Bricker Graydon LLP

US EPA issues draft guidance regarding NPDES permitting requirements following Maui Supreme Court decision

Bricker Graydon LLP on

On December 8, 2020, U.S. EPA announced issuance of draft guidance to clarify its view of how the U.S. Supreme Court’s recent County of Maui v. Hawaii Wildlife Fund decision should be applied to its Clean Water Act National...more

Troutman Pepper

EPA Seeks to Clarify Application of Maui and “Functional Equivalent” Test

Troutman Pepper on

On December 12, the United States Environmental Protection Agency (EPA or the Agency) issued draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in County...more

Davis Wright Tremaine LLP

Washington Supreme Court Extends Corporate Privilege to Non-Employee Agents

The Washington Supreme Court decided that a corporation's attorney-client privilege may protect communications with independent contractors and other non-employee agents in a recent decision styled Hermanson v. MultiCare...more

Hodgson Russ LLP

SBA Simplifies Forgiveness Application Process for Paycheck Protection Program Borrowers (and Their Lenders) on Loans of $50,000...

Hodgson Russ LLP on

For the past few months, lenders, trade groups, borrowers, and some lawmakers have been pushing for a more streamlined forgiveness process for Paycheck Protection Program (PPP) loans up to $150,000, though a consensus has not...more

Troutman Pepper

Protecting Privilege When Communicating With Contractors

Troutman Pepper on

As more businesses rely on independent contractors and specialists, the courts continue to define where those independent contractors fit for purposes of the attorney-client privilege. Here we discuss recent decisions...more

(ACOEL) | American College of Environmental...

Return to Maui and Upstate Forever

Despite losing his bid to have the U.S. Supreme Court declare that wastewater discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino,...more

Farella Braun + Martel LLP

Supreme Court Ruling Expands Reach of Clean Water Act NPDES Permitting

In April, the United States Supreme Court issued a landmark ruling clarifying the reach of the federal Clean Water Act. The Court decided that a discharge of pollutants from a point source to groundwater is subject to...more

Baker Donelson

The U.S. Supreme Court Broadens EPA's Regulatory Authority to Include Groundwater Discharges

Baker Donelson on

On April 23, 2020, the United States Supreme Court clarified and expanded when a person is obligated to obtain a discharge permit under the federal Clean Water Act (Act)....more

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