In a recent LawFlash, our colleagues in the environmental practice discuss the recent Supreme Court ruling that the Clean Water Act (CWA) requires a permit when there is a direct discharge (or the functional equivalent of a direct discharge) from a point source into navigable waters.
The decision provides a framework for analyzing whether the CWA’s permitting requirement applies to indirect discharges from point sources into navigable waters, and is notable for its rejection of US Environmental Protection Agency (EPA) guidance—issued while the case was pending before the Court—in which EPA opined that “releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements” and could provide fodder for future challenges to federal agency statutory interpretations.
The question of what constitutes the “functional equivalent of a direct discharge” is also likely to be the subject of significant future litigation and debate, just as the question of what constitutes a “navigable water” has been. The decision also will require EPA to revisit its interpretative statement and consider the issuance of administrative guidance on the application and implementation of the Court’s decision.