On April 23, the U.S. Supreme Court issued its decision in the Maui case.
By a 6-3 majority, the Court ruled as follows: “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.” In ruling, the Court rejected the Ninth Circuit’s “fairly traceable” test, but they also reject EPA’s position that there is no NPDES jurisdiction over discharges to groundwater.
Since the Ninth Circuit did not apply the proper standard, the case has been remanded to the Circuit, “for further proceedings consistent with this opinion.” As to how the new “functional equivalent” test will be applied, the Court states that “courts can provide guidance through decisions in individual cases.” (That creates significant risk of an explosion in litigation over this issue.)
But the Court also states that EPA can provide “administrative guidance (within statutory boundaries),” by the issuance of individual or general permits and by “the development of general rules.” So, EPA could develop “general rules” to provide some clarification as to how the “functional equivalent of a direct discharge” test will be applied.
Contribution by:
Fredric P. Andes, Esq.
Partner, Barnes & Thornburg LLP
Chicago, IL
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