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Recent developments in case and statutory law have called into question how federal permitting requirements will be applied to specific discharges in New Jersey and throughout the country. While the Trump administration has tried to streamline and clarify the application of the Clean Water Act (CWA), state and private challenges to the Environmental Protection Agency’s (EPA) Navigable Waters Protection Rule (“NWP Rule”) and the recent Supreme Court decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020), have further complicated this issue. After Maui, companies with discharges through groundwater must grapple with whether they are subject to federal jurisdiction under the CWA. While it is still unclear how the federal and state governments will address these recent events in their permitting and enforcement actions, on its face, Maui does not appear to impact the NWP Rule.

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