U.S EPA Finalizes Guidance on Implementation of U.S. Supreme Court’s ‘Functional Equivalent’ Clean Water Act Test in County of Maui Case

February 2021

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 1, Number 5

On January 14, 2021, the U.S. Environmental Protection Agency (EPA) finalized guidance regarding the implementation of the U.S. Supreme Court’s decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, 590 U.S. ___ (2020) (Maui), which established a “functional equivalent” test to determine when discharges to groundwater that ultimately reach surface waters should be regulated under the federal Clean Water Act in the same manner as a direct discharge to surface waters (Maui Guidance). The Maui Guidance states that any discharge must meet certain “baseline permitting principles” comprised of threshold conditions that trigger the National Pollutant and Discharge Elimination System (NPDES) Permit requirement, and the type of analysis permit writers currently conduct for surface waters discharge.

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