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The Environmental Protection Agency (EPA) recently published draft guidance on how to apply the functional equivalent test created by the Supreme Court
in
County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462
(2020). The functional equivalent test is intended to
help determine if a Clean Water Act permit is needed when
pollutants are discharged to groundwater before reaching navigable
waters. The draft guidance reiterates threshold conditions that
must be satisfied to trigger the need for a Clean Water Act permit
and introduces a new factor relevant to the functional