The Clean Water Act requires persons discharging pollutants to navigable waters to obtain a permit. But where a discharge does not convey pollutants directly to navigable waters, but rather follows an indirect path through groundwater, is a discharge permit required? The answer is, sometimes.  

In County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020), the County of Maui operated a wastewater reclamation facility that pumped treated sewage through four wells hundreds of feet deep. The county was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit only if it engaged in the “discharge of a pollutant,” defined in the act to mean “any addition of any pollutant to navigable waters from any point source.” A point source is a pipe, ditch, well or other “discernible, confined and concrete conveyance.”  

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