(January 8, 2019) - The US Solicitor General (SG) has recommended that the US Supreme Court grant certiorari to resolve the circuit split on the limited question of whether the release of a pollutant from a point source that reaches groundwater and thereafter enters a Clean Water Act (CWA) jurisdictional surface water triggers the requirement for a CWA National Pollutant Discharge Elimination System (NPDES) permit.

The SG’s brief does not take a position on the merits of the question presented, but instead asks the court to resolve the split between lower federal appeals courts on the issue.   

In May 2016, the US Department of Justice (DOJ) filed an amicus brief in the Ninth Circuit Maui case arguing that the CWA applied via the direct hydrologic connection theory of liability. The only mention of that position in the SG’s brief was the following:

[The Ninth Circuit] viewed its “fairly traceable” standard … as more faithful to the statute than an alternative standard, advocated by the United States in an amicus brief, that would have “required a ‘direct hydrological connection’ between the point source and the navigable water.”

The SG also argues that Maui v. Hawaii Wildlife Fund (Case 18-260) is the best vehicle for resolving the issue:

The determination whether the plaintiffs in that case had stated a cognizable claim turned entirely on whether, as the Ninth Circuit held, the CWA’s prohibition on the discharge of pollutants governs the release of pollutants from a point source “into groundwater, through which the pollutants then enter a “navigable water.” Neither the court’s opinion in Maui, nor respondents’ brief in opposition, identifies any obstacle to this Court’s resolution of that issue if the Court grants review.

In Kinder, by contrast, the Fourth Circuit addressed the merits of the indirect-discharge theory only after concluding that the plaintiffs had properly alleged “an ongoing violation” sufficient to confer “‘jurisdiction’ over [a] CWA citizen suit.”

The brief also stated that the EPA has informed the SG’s office that it expects to take action “within the next several weeks” on its February 2018 request for comments on the issue, and that the Court should have the benefit of EPA’s views before merits briefs are due. In May 2018, NACWA submitted comments to EPA’s Office of Water regarding how discharges of pollutants to groundwater should be regulated under federal and state environmental laws.

For more information on this issue, see NACWA Summary: CWA Point Source Liability for Discharge of Pollutants Via Groundwater and NACWA’s brief supporting Maui’s cert petition.

Contact Amanda Waters, NACWA General Counsel, with questions.