This article was first published by Portfolio Media, Inc., a subsidiary of Lexis/Nexis.
In Hawaii Wildlife Fund v. County of Maui, the U.S. District Court for the District of Hawaii held on July 15 that the county of Maui’s daily discharges of millions of gallons of wastewater into groundwater wells half a mile from the Pacific Ocean were the functional equivalent of direct discharges to the ocean, thus requiring a Clean Water Act permit. This is the first reported decision applying the U.S. Supreme Court’s 2020 decision in County of Maui v. Hawaii Wildlife Fund.
The Maui decision closed a loophole in the Clean Water Act, and provided useful guidance on the issue of whether to require permits for discharges to waters of the United States from groundwater. However, the standard remains muddy, and the U.S. Environmental Protection Agency or Congress needs to act to provide more clarity — through guidance, a general permit, regulation or amendment of the CWA.
Beyond the Maui decision, due to the significant political and economic impacts riding on the overall definition of “waters of the United States,” this issue has spawned and will continue to spawn significant litigation and regulatory ping-pong, unless the opposing interests can arrive at a consensus on a congressional or regulatory fix — which is not likely to happen any time soon.
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Counsel, Kenneth Reich Law, LLC