December 27, 2018

In Brief

John R. Jacus

Clean Water Act—Supreme Court calls for views of the Solicitor General (CVWG)

County of Maui v. Hawaii Wildlife Fund, No. 18-260 (S. Ct.) and Kinder Morgan Energy v. Upstate Forever, No. 18-268 (S. Ct.). 
On December 3, 2018, the U.S. Supreme Court invited the Solicitor General to file briefs by January 4, 2019, on the government’s position on two pending petitions for certiorari in County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy v. Upstate Forever. In County of Maui, the U.S Circuit Court of Appeals for the Ninth Circuit affirmed that Maui County violated the Clean Water Act (CWA) by discharging pollutants from four wastewater disposal wells into groundwater and from there into the coastal waters of the Pacific Ocean, a water of the United States, without a National Pollutant Discharge Elimination System (NPDES) permit. The Ninth Circuit held that the county was liable because pollutants were fairly traceable from the point source (wells) to the navigable water (via groundwater), and that such discharge is the “functional equivalent” of a discharge into the navigable water. In Kinder Morgan Energy, the majority of a U.S. Circuit Court of Appeals for the Fourth Circuit panel held that a spill from a ruptured underground gasoline pipeline resulted in CWA liability since the pollutants traveled from the original point of release from the ruptured pipeline through groundwater to reach “navigable waters,” and was therefore properly subject to enforcement under the CWA. Both courts held that groundwater with a “direct hydrological connection” to navigable waters falls within the scope of the CWA. These cases highlight the inter-circuit split of authority on this question with the U.S. Circuit Court of Appeals for the Sixth Circuit in the case of Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018) (summarized in this issue of Trends), in which a majority reasoned that the CWA’s text and statutory context would not accommodate the plaintiff’s assertion that groundwater could be deemed a point source, since it is not “discernible, confined or discreet,” and also rejected the plaintiff’s “hydrological connection” assertions, similar to those made in County of Maui and Kinder Morgan Energy. Given the Supreme Court’s request that the Solicitor General file its brief by early January, it is possible one or both cases might yet be scheduled for oral argument this session, should certiorari be granted.

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