SCOTUS, Having Received Views of Solicitor General, Will Decide Whether CWA Regulates Indirect Discharge of Pollutants Into Navigable Water Via Groundwater


Prior to deciding whether to review an important February 1, 2018, U.S. Court of Appeals for the Ninth Circuit decision involving the jurisdictional reach of the Clean Water Act (CWA), Hawai’i Wildlife Fund, et al., v. County of Maui, the Supreme Court asked the Solicitor General for the views of the U.S. on the holdings of this case and the April 12, 2018 U.S. Court of Appeals for the Fourth Circuit decision, Upstate Forever, et al., v. Kinder Morgan Energy Partners, L.P., et al.

On February 19, the Supreme Court confirmed that certiorari was granted to Question 1 presented by the Petition,

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. (33 U.S.C. § 1362 (12)

In County of Maui , the Ninth Circuit held that indirect discharges to navigable waters through groundwater may be subject to the Environmental Protection Agency’s (EPA) CWA the National Pollutant Discharge Elimination System (NPDES) permitting authority, and in Kinder Morgan, the Fourth Circuit held that such an indirect discharge may be subject to regulation under the CWA when there is a direct hydrological connection between the discharge into groundwater and the direct discharge into navigable, surface waters.

The Solicitor General’s brief noted that a pair of U.S. Court of Appeals for the Sixth Circuit decisions a few months later rejected these holdings, Tennessee Clean Water Network, et al., v. Tennessee Valley Authority and Kentucky Waterways Alliance, et al., v. Kentucky Utilities Co. As a result, the Solicitor General stated that “the courts of appeal are thus squarely in conflict on the proper reading of the CWA’s definition of the term, “discharge of a pollutant,” and this serious conflict “warrants resolution by this court.”

The Government’s brief stated that only the County of Maui case should be selected for review, and that, moreover, the Supreme Court should not review any of the other issues raised by the petitioners. The Supreme Court places great stock in the advice given to it by the Solicitor General, and its review will be limited as described above.

At the present time, the last arguments to be heard this term will take place on April 24, 2019, meaning that there may be no oral argument on the County of Maui case until the next term of the Supreme Court.