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Cert Petition Seeks Supreme Court Review of Ninth Circuit’s Expansion of the CWA’s NPDES Program

On February 1, 2018, the Ninth Circuit issued a decision in Hawai’i Wildlife Fund, 886 F.3d 737 (9th Circ. 2018), that has the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA).  For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters.  The Ninth Circuit rejected this assumption, holding that a “discharge” requiring a permit occurs whenever pollutants in a water body can be “traced back” to a specific point source, even when the point source did not directly convey pollutants to surface waters.

Citing the potential for the Ninth Circuit’s decision to transform the NPDES program, the County of Maui filed a petition for writ of certiorari asking the Supreme Court to review the Ninth Circuit’s decision.  The County argues that the Ninth Circuit’s decision conflicts with the Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), as well as a number of decisions in various federal courts of appeals.  The petition also points out that the decision below, if not reversed, would expand the NPDES program in ways that Congress could not have intended.  The County specifically highlights the risks posed to entities that—like the County—use underground injection wells to dispose of wastewater, as well as homeowners who use septic systems. 

If the Supreme Court grants certiorari, the justices would have the opportunity to resolve a hotly-disputed issue pending before EPA and multiple federal courts.  Earlier this year, EPA sought public comment on whether requiring permits for pollutant discharges that reach jurisdictional surface waters via groundwater or other subsurface flow is consistent with the text, structure, and purposes of the CWA.  The Fourth Circuit also addressed the “indirect discharge” issue in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (2018), in which a divided panel held that a release from a point source and pollutants reaching navigable waters only must be “sufficiently connected” in order to require an NPDES permit.  Cases pending in Second and Sixth Circuit may also require these courts to weigh in on this issue.  26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.).

Anyone concerned about the threat of an expanded NPDES program—and associated liability for unpermitted discharges—can urge the justices to grant the County of Maui’s cert petition.  Amicus briefs supporting the petition are due on September 26, 2018.

© 2019 Beveridge & Diamond PC

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About this Author

Timothy Sullivan, Environmental Lawyer, Beveridge & Diamond Law Firm
Principal

Tim Sullivan's practice focuses primarily on environmental and natural resources litigation before federal and state courts and adjudicatory bodies. He represents and advises public and private clients in regulatory, litigation, and other matters involving many federal and state environmental and natural resources laws, with a particular emphasis on CERCLA, the Endangered Species Act, and the Clean Water Act. In addition to his work for clients, Mr. Sullivan is also active in state and federal professional activities. He is an adjunct Professor of Law in the...

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Andrew C. Silton, Beveridge Diamond, Environmental Lawyer,
Associate

Andrew ("Drew") Silton's practice focuses on environmental compliance, regulatory, and complex litigation matters.  He counsels clients across a range of industries. Drew's experience includes:1

  • Defending clients in citizen suits and administrative permitting challenges.

  • Collaborating with in-house and outside technical experts to develop defenses in administrative and civil proceedings.

  • Providing factual and legal analysis in support of responses to state and federal enforcement actions.

  • Filing and briefing administrative appeals before state and federal hearing boards.

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W Parker Moore, Environmental Lawyer, Beveridge & Diamond Law firm
Principal

Parker dedicates his practice to successful project development. He helps clients nationwide from every economic sector navigate issues arising under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and related environmental laws.  He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound and successful legal strategies. He co-chairs B&D’s...

202-789-6028
Richard Davis, Environmental Lawyer with Beveridge & Diamond Clean Water Act Attorney
Principal

Richard S. Davis has practiced almost exclusively under the federal Clean Water Act and its state analogues since he joined Beveridge & Diamond, P.C. in 1981.  Chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, Mr. Davis helps to direct one of the most innovative and dynamic clean water practices in the United States.  His individual practice includes active representation of major clean water agencies on issues including permitting, TMDLs, CSO and other enforcement defense, and regulatory planning to take advantage of innovations such as water...

202-789-6025