On April 23, 2020, the U.S. Supreme Court issued an opinion that expands the scope of the Clean Water Act (CWA) to cover both direct and indirect discharges of a pollutant from a “point source” into a “navigable water” (which includes the oceans out to the three-mile limit). The decision was setback for WLF, which in its amicus curiae brief had argued that the CWA does not apply to groundwater releases, even when a portion of the release eventually migrates into protected waters. While the Court listed several factors relevant to deciding whether a groundwater release qualifies as an indirect discharge, it held that “time and distance” are the most important factors. The Court remanded the case back to the Ninth Circuit to apply the new multi-factor test. That decision will almost certainly require the County of Maui to seek and obtain a discharge permit for all groundwater releases.
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