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Justices Wrestle with Scope of the CWA’s Permitting Requirement

The Supreme Court of the United States heard oral argument in County of Maui v. Hawai’i Wildlife Fund, No. 18-260, a case in which the justices will decide a key jurisdictional issue under the Clean Water Act (CWA): whether the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting requirement applies to releases from point sources that traverse a nonpoint source—like groundwater—before entering navigable waters. Below, the Ninth Circuit had held that the County of Maui’s releases of treated wastewater from injection wells that reached the Pacific Ocean via groundwater required a permit because they were “fairly traceable” back to a point source. 

The justices pressed the advocates to defend their proposed tests for when a “discharge” occurs, such that the CWA requires a permit. In urging reversal, Maui contends that the CWA’s requirement that a point source be a “conveyance” means that a discharge occurs only when a point source actually delivers pollutants to navigable waters. By contrast, the environmental groups who sued Maui are asking the justices to hold that a discharge occurs whenever pollutants in navigable waters are (a) fairly traceable to a point source and (b) it was reasonably foreseeable that pollutants from that source would reach navigable waters. The United States argued in support of reversing the Ninth Circuit but argued that the Court make a narrow ruling that only excludes releases into groundwater (as opposed to releases onto land) from the NPDES permitting program.

Much of the questioning focused on three issues: the potential for evasion, predictability in the permitting regime, and whether any limiting principle could be applied to any of the arguments presented. Multiple justices expressed concerns about adopting a test that would allow otherwise-regulated entities to avoid having to obtain NPDES by locating pipes just short of navigable waters. Other questions focused extensively on the need for a standard that makes determining whether a NPDES permit is required clear before a discharge has commenced.

With the argument completed, the justices have taken the case under advisement. A decision is expected before the Court ends its term in June 2020.

© 2020 Beveridge & Diamond PC


About this Author

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...

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 Environmental Law Program at the University of Maryland School of Law where he teaches a seminar in Federal Public Lands and Natural Resources Law. He has also served as the Chair of the Environmental Law Section of the Maryland State Bar Association and as a Vice-Chair of the Endangered Species Committee of the ABA’s Section on Environment, Energy, and Resources.

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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