October 19, 2020

Volume X, Number 293

October 16, 2020

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Supreme Court to Decide Whether “Indirect” Discharges Require NPDES Permits

The U.S. Supreme Court has granted certiorari on a critical question affecting the scope of the Clean Water Act (CWA): whether releases of pollutants require National Pollutant Discharge Elimination System (NPDES) permits when they originate from a point source, but are conveyed to surface waters through a non-point source. The Court will hear the case, County of Maui v. Hawaii Wildlife Fund, No. 18-260, next fall, during October Term 2019.

The justices will review a Ninth Circuit decision holding that releases need not be conveyed directly by a point source to jurisdictional surface waters to require a NPDES permit. The case concerns the County of Maui’s operation of a wastewater reclamation facility that disposed of fully treated wastewater into a set of four injection wells. The Ninth Circuit held that the County’s operation of its injection wells, which caused pollutants to reach the ocean via groundwater, required an NPDES permit because the pollutants were fairly traceable back to point sources—the wells. The Court rejected the County’s argument that a NPDES permit is only required when a point source directlydelivers pollutants to a surface water.

The Ninth Circuit was one of three Courts of Appeals to weigh in on this issue in 2018. The Fourth Circuit joined the Ninth by holding that releases from a pipeline reaching navigable waters via soil and groundwater required NPDES permits. In a pair of decisions, the Sixth Circuit created a circuit split by holding that a NPDES permit is required only when a point source is the actual conveyance that delivers pollutants to jurisdictional waters. The losing parties in Maui and the Fourth Circuit case, Upstate Forever v. Kinder Morgan Energy Partners, L.P., both sought certiorari. 

The Court granted review only on a single question presented in Maui, a decision consistent with the position advanced in the Solicitor General’s amicus brief filed in January. The justices will thus resolve a simple, but important, question: whether NPDES program’s reach is limited—covering only “direct” discharges—or expansive—regulating discharges conveyed through non-point sources. The answer will have major implications for operations as diverse as farms, wastewater treatment plants, and coal mines.

Under the Supreme Court’s rules, amicus briefs in support of the petitioners, who are seeking a reversal of the Ninth Circuit’s expansive holding, are due in mid-April.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 52


About this Author

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...

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. 

    In addition to his work for clients, Tim 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.

    Tim came to B&D in 2006 from Portland, Oregon, where he represented clients in matters involving environmental and natural resources law and litigation for five years with a regional Pacific Northwest law firm.

    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...

    Brooklyn N. Hildebrandt Environmental Litigation Attorney Beveridge & Diamond Washington, DC

    Brooklyn maintains a diverse environmental litigation and regulatory practice and is also committed to pro bono work.

    She enjoys the challenge of solving legal problems for clients in the face of constantly changing and often contradictory regulations that require a big-picture approach to resolution. She takes the time to listen to clients, isolate the exact problem they’re facing, identify all applicable rules, and provide a comprehensive solution. Her goal in every matter is to help the client get ahead of any non-compliance issue while remaining in good standing with enforcement...