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Justices Request the Government’s Views on CWA Discharge Cases

On December 3, 2018, the U.S. Supreme Court requested the federal government’s views on two petitions for certiorari asking the Court to decide whether the Clean Water Act (CWA) regulates releases of pollutants that reach surface waters through groundwater.  In both cases, County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, the petitioners seek review of lower court decisions holding that such releases are subject to the CWA’s prohibition against unpermitted discharges.  The government’s briefs, which are due January 4, 2019, may offer the first glimpse into the government’s current position on this aspect of the CWA.

The federal courts of appeals are currently split on whether the CWA regulates releases to groundwater that eventually reach jurisdictional surface waters.  In the Maui and Kinder Morgan cases, the Ninth and Fourth Circuits both concluded that a point source need not directly deliver pollutants to surface waters, such that a discharge to groundwater may be regulated under the CWA.  By contrast, the Sixth Circuit held in a pair of September decisions that the CWA’s definition of “discharge” requires that a point source directly deliver pollutants to surface waters.

While these cases have worked their way through the courts, EPA has also suggested it may take action on this issue.  Earlier this spring, the agency asked for public comment on whether the CWA regulates discharges reaching surface waters via groundwater.  EPA also solicited comment on how, if at all, such discharges should be regulated.

The government’s forthcoming briefs may provide insight into what further action EPA might take and where the current administration stands on this issue.  The briefs might advise the court that EPA plans to take regulatory action to address the issue raised in the petitions for certiorari, which would militate against the Supreme Court granting review. 

The government could also preview its position on the merits.  EPA has not weighed in on the substance of this issue since filing an amicus brief in the Ninth Circuit Maui case during the Obama administration.  That brief argued that the CWA applies to releases to groundwater that has a “direct hydrologic” connection to surface waters, a position that the Ninth Circuit rejected in favor of a broader holding.  The briefs requested by the Supreme Corurt may provide the first indication of how the EPA will approach this set of issues now that President Trump is in office.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 339


About this Author

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

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...

Richard S. Davis Clean Water Act Attorney Beveridge & Diamond Washington, DC

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 clean water agencies, in Clean Water law matters that include permitting, pretreatment, Total Maximum Daily Loads (TMDLs), Combined Sewer Overflows (CSOs), enforcement defense of agency and citizen suits, and regulatory negotiation and strategic planning. His work for both private and public clients gives him a thorough understanding of the demands on those publicly owned treatment works and, in turn, their perspective when regulating indirect industrial dischargers.

Richard’s Clean Water Act expertise allows him to solve sophisticated regulatory challenges for his clients using the least-cost means, whether that be persuasion, commenting on rules, meetings with agency leaders, or litigation. Often, he solves issues by demonstrating why an adversary’s interpretation of a statute or regulation is mistaken.

Accomplishments of which he is particularly proud include his ongoing representation of a coastal Florida community whose incomparable natural resources were threatened by releases of contaminated water from Lake Okeechobee. Richard worked with the Corps of Engineers and other stakeholders to give his client a voice in directing those releases. Moderated releases have effectively saved the community’s signature wildlife refuge.

In another notable matter, Richard worked with the aviation industry in a multi-year effort to stave off inflexible regulation of aircraft deicing runoff at airports. As chief outside counsel to the U.S. airlines’ trade association, he developed and executed a strategy to demonstrate to the Environmental Protection Agency (EPA) that its one-size-fits-all proposed regulation would not survive a challenge. EPA accepted that fact and in 2012 issued a final Effluent Limitation Guideline (ELG) that left regulation of aircraft deicing discharges to individual permit writers.

Richard also successfully represented the recreational boating industry when it faced having its sales decimated by a federal court decision that would have required all private boat owners to obtain federal discharge permits. He helped to lead an effort that culminated in the passage of the federal Clean Boating Act of 2008, which protects recreational vessels from permitting under a program better suited to address industrial dischargers.

Richard clerked for the Honorable H. Emory Widener, Jr., U.S. Court of Appeals for the Fourth Circuit, from 1980 to 1981. He has authored numerous articles, speaks often on cutting-edge Clean Water Act topics, and was the principal author of M. Bender’s Environmental Law Practice Guide on water pollution. He has also been a Professorial Lecturer at Columbus School of Law, Catholic University of America.

Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party...

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. 


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

    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...