In April, the U.S. Supreme Court established a new standard under the Clean Water Act when it vacated and remanded a closely watched U.S. Court of Appeals for the Ninth Circuit decision that pertained to the federal government’s authority to regulate the discharge of pollution from a point source through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 590 U.S. ____ (Apr. 23, 2020). The central issue of the case was whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source such as groundwater. The court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Because the “functional equivalent” standard is somewhat amorphous, the court introduced several factors (referred to hereafter as the Breyer Factors) to aid courts, the U.S. Environmental Protection Agency (EPA) and the regulated community in making permitting determinations.

The Clean Water Act (CWA) prohibits the “addition” of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the EPA or a delegated state agency. A “point source” is defined in the CWA as “any discernible, confined and discrete conveyance … from which pollutants are or may be discharged.” See 33 U.S.C. Section 1362(14). The statutory definition identifies pipes, ditches, channels, tunnels and wells as examples of potential point sources. Therefore, a discharge to a navigable water via a point source requires a CWA National Pollutant Discharge Elimination System (NPDES) permit.