Event Calendar
Prev MonthPrev Month Next MonthNext Month
NAEP Webinar: Supreme Court Clean Water Act Decision April 23, 2020: What Does it Mean for Future Groundwater Permitting?
Wednesday, June 10, 2020, 12:00 PM - 1:30 PM PST
Category: Webinars

Supreme Court Clean Water Act Decision April 23, 2020: What Does it Mean for Future Groundwater Permitting?

Moderated by Fred R. Wagner
Presented by Margaret Fawal, Nicolas Frederick, and Katherine Sochacki

June 10, 2020 | 12:00 PM - 1:30 PM PT


On April 23, 2020, the U.S. Supreme Court issued a decision in County of Maui v. Hawaii Wildlife Fund, a much-watched case out of the Ninth Circuit involving the scope of the Clean Water Act’s Section 402 permitting requirements for point source discharges. In the case, the Supreme Court determined whether a Section 402 permit is required when pollutants originate from a point source but are conveyed to navigable waters via groundwater (this has also been referred to as the “conduit theory”). The Court found that the CWA can apply to pollution that travels through groundwater. However, the Court significantly narrowed the standard that the Ninth Circuit used when it upheld the conduit theory. The Supreme Court ultimately designed its own test, concluding that the CWA requires a permit if "the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters." While the Court identified a number of factors that may be relevant to determining what is the “functional equivalent of a direct discharge,” including both time and distance, it acknowledged that application of this new standard will be left to the lower courts and regulators on a case-by-case basis.

Long story short, as the Court acknowledged in its opinion (and as criticized in the dissents written by Justice Thomas (and joined by Justice Gorsuch) and by Justice Alito), what constitutes a “functional equivalent of a direct discharge” will have to be determined on a case-by-case basis. While the Court provided some guidance in terms of what factors may be relevant, it will be up to the lower courts and regulators, including EPA, to make these determinations.

Join us for this webinar where the panelists will discuss what this means for future groundwater permitting.


Fred R. Wagner
Venable LLP

Fred Wagner focuses on environmental and natural-resources issues associated with major infrastructure, mining, and energy project development. Fred manages and defends environmental reviews performed under the National Environmental Policy Act (NEPA) or equivalent state statutes. He works with public agencies and private developers to secure permits and approvals from federal and state regulators under Section 404 of the Clean Water Act (CWA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). Fred understands the full range of issues surrounding U.S. Department of Transportation (USDOT) surface transportation programs, including grant management, procurement, suspension and debarment, and safety regulations.

During his career, Fred has handled a wide variety of environmental litigation in federal trial and appellate courts across the country, from citizen suits to government enforcement actions and Administration Procedure Act (APA) challenges.

Fred was appointed chief counsel of the U.S. Federal Highway Administration (FHWA) during the Obama administration. He managed all legal matters involving the $40 billion Federal-Aid Highway program, including environmental and natural resources issues for highway and multimodal transportation projects. Among other high-profile projects, he oversaw the agency’s defense of the following: New York's Tappan Zee Bridge, San Francisco's Presidio Parkway, Chicago's Elgin-O'Hare Expressway, Kentucky and Indiana's Ohio River Bridges, North Carolina's Bonner Bridge, Alabama's Birmingham Northern Beltline, Wisconsin's Zoo Interchange, and Washington's State Road 520 Bridge. He represented the FHWA on the government-wide Transportation Rapid Response Team, a multi-agency task force focused on improving project delivery and environmental review reforms.

Fred began his career as a trial attorney in the Environment Division of the U.S. Department of Justice. He also served as a special assistant U.S. attorney in the Misdemeanor Trial Section of the U.S. Attorney's Office for the District of Columbia. Prior to joining Venable, he spent more than 20 years in private practice at a national law firm focusing on environmental and natural resources issues.


Margaret Fawal
Venable LLP

Maggie Fawal represents businesses and trade associations in a wide array of civil and regulatory environmental matters. She has experience assisting clients in a number of industries, including electric utilities, transportation, mining and agribusiness. Maggie's experience covers a wide range of environmental laws, including the Resource Conservation and Recovery Act, the National Environmental Policy Act, the Clean Water Act, and the National Historic Preservation Act, in addition to a variety of other substantive federal statutes.


Katherine Sochacki
Venable LLP

Katie Sochacki assists clients with various environmental law matters, including regulatory compliance, permitting, and litigation. Katie has experience working with the Resource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, and other environmental statutes. She also maintains an active pro bono practice.
During law school, Katie served as a law clerk for the Tennessee Attorney General and as a legal intern in the U.S. Attorney's Office for the Western District of Michigan. Katie was a 2018 Law Fellow for Fellowships at Auschwitz for the Study of Professional Ethics.

Nicolas Frederick

 [Biography coming soon]





NAEP Member: $75
Chapter Members: $125
Non-member: $140