Under the CWA, the discharge of pollutants, meaning the “addition of any pollutant to navigable waters from any point source,” without a permit is prohibited. Previously, we reported on the circuit split (Part 1) between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to WOTUS through groundwater required a CWA permit.

In Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018), and Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018), the Sixth Circuit dismissed the CWA issues based on the fact that the discharge had occurred to groundwater. In both Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) amended by 886 F.3d 737 (9th Cir. Mar. 30, 2018), the Fourth and Ninth Circuits extended CWA jurisdiction to discharges that occurred to groundwater.

Two of the previously discussed cases filed petitions for writ of certiorari to the Supreme Court (Upstate Forever & Hawai’i Wildlife Fund). Both are aimed at settling whether the Clean Water Act (CWA) governs an indirect discharge to navigable waters. The Supreme Court asked the U.S. Solicitor General whether it should grant certiorari in these cases, and the Solicitor General recommended in January 2019 that Hawai’i Wildlife Fund would be the best vehicle to address the fundamental question of whether CWA liability existed for these indirect discharges.

On February 19, 2019, the Court agreed to hear question 1 from the County of Maui’s (the County) petition, which asked:

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

Question two focused on whether the County had fair notice of any permitting requirements under the CWA for its injection wells. The Ninth Circuit had affirmed the district court’s ruling that the County had fair notice of its violations of the CWA. Hawai’i Wildlife Fund, 886 F.3d at 742.

Conclusion

Hopefully, the Supreme Court’s decision in this case will settle the circuit split from 2018. It is difficult to predict how the Court might rule. However, given the current make-up of the Court, a narrow ruling which limits the reach of the CWA would not be unexpected.