About the Course
Introduction
This CLE course will discuss the Supreme Court's decision in County of Maui, Hawai'i v. Hawai'i Wildlife Fund, which sets forth a test for when discharges to jurisdictional waters (WOTUS) via groundwater require NPDES permitting under the Clean Water Act (CWA), triggered when the discharge to groundwater is the "functional equivalent of direct discharge." The panel will discuss the critical issues and analysis, the current state of the law, and what criteria to consider in the "functional equivalence" analysis.
Description
On Apr. 23, 2020, the U.S. Supreme Court issued its opinion in Maui, providing some clarity on how federal CWA permitting requirements apply to discharges that reach surface water via groundwater (if the receiving water is a "Water of the United States"). The Court declined to follow the existing standard, instead striking a middle ground with the "functional equivalent" standard. The new standard allowed regulatory agencies to require permits for some pollutant discharges to groundwater.
The Supreme Court identified seven non-exclusive factors relevant to determining whether a groundwater discharge requires an NPDES permit. Since Maui, courts have applied these factors in fact-specific ways. Agency guidance and implementation continue to evolve. Today's practitioners may face a two-step analysis: threshold WOTUS jurisdiction and, if jurisdiction exists, application of the "functional equivalent" factors.
Listen as our authoritative panel of environmental practitioners discusses the critical tests in this decision, the implications for industries across the economic spectrum, and the future of groundwater discharge enforcement under CWA, including agency enforcement priorities and citizen suit risk.
Presented By
Mr. Morrison counsels and represents clients on a wide variety of environmental issues and claims, including air quality, water and stormwater discharges, solid and hazardous waste, chemical use and storage, contaminated properties, mergers and acquisitions and real estate transactions. He expertly handles workplace safety issues involving chemical use and exposure. Mr. Morrison regularly assists clients faced with federal, state, or local agency enforcement actions as well as citizen suits on all these topics. He helps clients devise Environmental, Health and Safety management systems to minimize liabilities and orchestrates auditing programs to manage compliance.
As Co-Chair of the firm’s Water practice, Mr. Silton maintains a practice spanning high-stakes litigation, enforcement, and regulatory counseling. He helps find solutions to pressing water pollution control and water quality problems. Mr. Silton led B&D’s team that secured a landmark victory in City & County of San Francisco v. EPA, 145 S. Ct. 704 (2025) in which the U.S. Supreme Court ruled that EPA and states lack authority under the Clean Water Act to impose permit terms that hold permittees responsible for the overall condition of their receiving waters. He helped San Francisco secure a spot on the Supreme Court’s vanishingly small merits docket and a victory that will ensure National Pollutant Discharge Elimination System permits clearly define permittees’ obligations. San Francisco is among the many critical cases Mr. Silton has brought in state and federal appellate courts to challenge agency and local government actions. Public and private sector clients seek Mr. Silton to defend major Clean Water Act enforcement actions.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, June 30, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Overview of CWA and groundwater discharge issues, threshold WOTUS jurisdiction considerations
II. History of County of Maui v. Hawai’i Wildlife Fund, circuit split, and EPA's evolving guidance
III. Functional equivalence test, strategy for relevant evidence
IV. Practical considerations and community implications
A. Agency enforcement
B Citizen suit considerations
V. Practitioner takeaways
The panel will review these and other relevant topics:
- The functional equivalence test from County of Maui v. Hawai’i Wildlife Fund
- How will Maui impact the regulated community, including threshold WOTUS jurisdiction considerations?
- The current state of the law and agency guidance
- Strategies for counseling clients to avoid civil penalties and citizen enforcement
Related Courses
CWA Indirect Discharges: WOTUS Thresholds, Subsurface NPDES Triggers, Agency Enforcement, and Citizen Suit Risk
Tuesday, June 30, 2026
1:00 PM ET/10:00 AM PT
Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies
Tuesday, July 14, 2026
1:00 PM ET/10:00 AM PT
