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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


About this Author

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

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...

Richard Davis, Environmental Lawyer with Beveridge & Diamond Clean Water Act Attorney

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 quality trading and EPA’s Green Infrastructure initiative.  Mr. Davis also represents individual industrial dischargers as well as industry groups, including groups representing the nation’s airlines and manufacturers of recreational vessels.  As state and federal regulatory programs continue to reach out to address these and other industries in novel and provocative ways, his practice will continue to present opportunities to shape regulatory programs to meet the needs of important public and private enterprises. 

Karen Hansen, Environmental Lawyer, Beveridge & Diamond Law Firm

Karen M. Hansen’s environmental law practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use.  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. Ms. Hansen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party entities. She recently led a multi...

Timothy Sullivan, Environmental Lawyer, Beveridge & Diamond Law Firm

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...

Andrew C. Silton, Beveridge Diamond, Environmental Lawyer,

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...

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