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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 249

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About this Author

Timothy M. Sullivan Environmental & Natural Resources Litigation Attorney Beveridge & Diamond Baltimore, MD
Office Managing 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 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Clean Water Act. Tim is the Managing Principal of Beveridge & Diamond's Baltimore office. 

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    Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC
    Principal

    Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

    His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies in the renewable energy, information technology, oil and gas, and transportation sectors.

    Drew also plays an active role in the firm's pesticide data compensation practice. He has brought multiple arbitrations to obtain compensation from competitors who have relied on clients' pesticide data to obtain registrations. Drew has also represented members of the pesticide industry in high profile administrative law litigation impacting the regulation and registration of pesticide products.

    Andrew’s experience includes:

    • Counseling data center operators on a variety of obligations under the Clean Water Act relating to the discharge of wastewater and storage of petroleum products.
    • Assisting clients with the negotiation and renewal of NPDES permits.
    • Authoring amicus briefs in cases impacting the scope of the Clean Water Act and the regulation of pesticide products.
    • Scoping and executing comprehensive compliance audits.
    • Defending clients in cases of first impression brought under the Clean Water Act.
    • Defending clients in toxic tort litigation.
    • Challenging local ordinances on preemption grounds.
    • Defending clients in state and federal enforcement actions, including the negotiation of consent orders and consent decrees.

    Prior to entering private practice, Drew gained experience working for the government and tackling emerging issues relating to adaptation to climate change. Immediately after graduating from Georgetown University Law Center, Drew served as a special law clerk at the United States Environmental Protection Agency (EPA) in Philadelphia, where he prepared cost recovery and enforcement actions under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA).

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    W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
    Principal

    Parker guides complex projects to successful completion.

    His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

    Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

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    Richard S. Davis Clean Water Act Attorney Beveridge & Diamond Washington, DC
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    Richard uses his 40 years of Clean Water Act experience to find cost-effective solutions for the complex regulatory challenges that his business clients face.

    Since joining Beveridge & Diamond in 1981, Richard has practiced almost exclusively under the federal Clean Water Act and its state analogues, chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, and helping direct one of the nation’s most innovative and dynamic clean water practices.

    Richard has represented individual industrial dischargers and industry groups, as well as local...

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