The Federal Clean Water Act (“CWA”) regulates discharges into the navigable waters of the United States through a permitting program formally known as a National Pollutant Discharge Elimination System permit (“NPDES”). Until recently, courts disagreed over whether the CWA covers pollution discharges into secondary water sources that travel via groundwater to regulated navigable waters of the United States.

The Supreme Court addressed this issue in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) holding that discharges from point sources that migrate to navigable waters of the United States are covered by the CWA, if they are the functional equivalent of a direct discharge. The Court outlined a seven-point test to make this determination. Recently, the Environmental Protection Agency (“EPA”) published final guidance clarifying the necessary conditions under which a federal permit for the discharge of a pollutant from a point source that travels through groundwater to a water of the United States. The EPA guidance provides clarification of some of the ambiguities resulting from the Court’s April, 2020 functional equivalent decision.

At the same time, EPA’s guidance raises the bar on parties either pursuing or defending CWA claims of an indirect discharge to a water of the United Stated via groundwater. However, since the publication of EPA’s guidance document, the District Court for the District of Hawaii has applied the SCOTUS functional equivalent standard to the facts in that case evidencing the potential fluidity of the Supreme Court’s standard.

Surprisingly, no single aspect of hydrogeology is less understood, even by geologists, than the behavior and transport of dissolved pollutants in groundwater plumes. That state of affairs, in light of the EPA guidance, creates opportunities for both CWA claims and defenses.  This course, designed specifically to de-mystify contaminant fate and transport, provides environmental attorneys with non-technical, jargon-free explanations of the behavior and fate of pollutants in groundwater plumes which can be translated into defensible CWA strategies, regulatory closure approaches for site remediation, successful permitting plans or approvable programs in land use arenas.

Applying the EPA Guidance in Regulatory and Legal Arenas