On January 3, 2019, the U.S. Solicitor General filed a brief urging the Supreme Court to grant certiorari in County of Maui v. Hawaii Wildlife Fund to decide the question of whether a “discharge of a pollutant…occurs when a pollutant is released through a point source, travels through groundwater, and ultimately migrates to navigable waters.”  The brief suggests review is warranted to resolve the issue conflicting the Fourth, Sixth, and Ninth Circuits, as well as the “numerous district courts” that have confronted cases involving claims of unpermitted discharges to waters of the United States “by migration through groundwater that is hydrologically connected.” The brief also advises that the process initiated by the U.S. EPA’s February 2018 request for comment on the scope of groundwater regulation under the Clean Water Act is not an appropriate reason to deny certiorari because EPA has indicated it will act on the comments “within the next several weeks,” providing additional views for the Court to consider in deciding the issue.

According to the Solicitor General, the question presented “has the potential to affect federal, state, and tribal regulatory efforts in innumerable circumstances nationwide” and has “significant” implications for regulated parties, “including because [Clean Water Act] violators may face serious civil penalties and, in certain cases, criminal punishment.”

The Burr & Forman Environment and Land Use Team will continue to provide our updated analysis.

To view the Solicitor General’s brief, please click here.

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