On February 19, 2019, the Supreme Court of the United States issued an order granting review of the Ninth Circuit’s decision in County of Maui v. Hawaii Wildlife Fund, setting the stage for a landmark decision on Clean Water Act jurisdiction. The particular issue under consideration is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. In January, the U.S. Solicitor General filed a brief – at the Court’s request – urging the Justices to decide the question conflicting trial courts and appellate courts throughout the country. The Court will presumably review the case during its October term.  In the meantime, the U.S. Environmental Protection Agency is expected to soon provide its views on the scope of groundwater regulation under the Clean Water Act in response to comments the agency received on the issue around this time last year.

The Supreme Court’s decision will have wide-ranging impacts, particularly for the regulated community and the forty-seven states authorized to administer the Clean Water Act permitting program.  The Burr & Forman Environment and Land Use Team will continue to provide our updated analysis.

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