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.
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
Ms. Li's practice focuses on a diverse mix of environmental litigation, enforcement defense, and regulatory advice. She works on matters arising under a range of federal and state environmental laws and develops practical, defensible strategies aligned with client objectives. Ms. Li represents clients from all sectors in high-stakes litigation and federal, state, and citizen enforcement actions. A significant portion of her litigation practice involves disputes arising under the Clean Water Act (CWA) and state water quality laws. Ms. Li also advises clients on regulatory compliance and risk management. She counsels on CWA permitting and related obligations, drinking water requirements, and emerging regulatory developments, helping clients navigate complex regulatory frameworks while managing operational and business risk.
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.
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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
Wednesday, July 29, 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
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