Muddy Waters: The Supreme Court Sets New Standard For When The CWA Applies

In an opinion that may foreshadow years of litigation, the Supreme Court has handed down its long-anticipated decision in County of Maui, Hawaii v. Hawaii Wildlife Fund. The 6-3 opinion authored by Justice Breyer concluded that the Clean Water Act (CWA) goes beyond mandating permits for direct discharges into navigable waters but “requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” This standard is left undefined and will be the focus of future disputes over the scope of the CWA.