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Potential Settlement Creates Uncertainty for US Supreme Court Case Regarding Clean Water Act Liability for Indirect Groundwater Discharges

On September 20, 2019, Maui County Council (Council) voted to settle the County’s pending appeal before the US Supreme Court of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. As previously reported here, the Ninth Circuit’s ruling held that the eventual migration of pollutants from permitted underground injection wells through groundwater into surface waters violates the Clean Water Act (CWA). The decision may portend an expansion of federal law, potentially subjecting a number of different wastewater sources (e.g., home septic systems, cesspools, etc.) to the CWA’s permitting requirements.

The US Supreme Court agreed to hear the appeal of the Ninth Circuit’s decision in County of Maui earlier this year. These proceedings were viewed by many as an opportunity for the high court to weigh in on the appropriate scope of the CWA. However, the Council’s recent resolution to settle the case with the environmental group that brought the lawsuit against the County casts uncertainty regarding the status of these proceedings. Under Supreme Court Rule 46.1, a settlement “[a]t any stage of the proceedings, whenever all parties file with the Clerk an agreement in writing that a case be dismissed” requires the Court to dismiss the proceedings.

Yet, the Council’s resolution, which was passed by a close vote of 5-4 after a lengthy debate (viewable here), may not be the last word on settlement. Maui County Mayor Michael Victorino does not support settlement and previously issued a lengthy op-ed in support the County’s appeal of the Ninth Circuit’s decision. The Council’s unilateral efforts to pursue settlement have raised legal questions regarding whether it may do so without the approval of the Mayor. Recently, both sides have gone back and forth in correspondence filed with the US Supreme Court regarding the impact of the Council’s settlement resolution (see herehere and here).  Then, in a statement issued on October 18th, the Mayor reaffirmed his position, indicating that he has “decided not to exercise the authority to settle” the County’s appeal and because the “issue must be clarified once and for all …”

For the time being, the matter remains pending before the high court with oral argument scheduled for November 6th. A similar decision by the Fourth Circuit in Upstate Forever v. Kinder Morgan also remains on hold pending the outcome of this case, and could be the vehicle for the high court to take up this critical issue if County of Maui is ultimately dismissed.

© Copyright 2019 Squire Patton Boggs (US) LLP

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Andrew Etter Environmental Attorney Squire Patton Boggs
Associate

Andrew Etter represents industry and municipal clients in environmental litigation and regulatory compliance matters. His litigation practice includes class action and mass tort litigation matters, as well as enforcement and citizens’ suit issues arising under the Clean Air Act (CAA), Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA) and other federal statutes and their state analogues. His regulatory experience includes various permitting and compliance issues under...

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