Does the Clean Water Act apply to pollution of navigable waters that has moved some distance from the point source through groundwater? Or is navigable water pollution exempted from the act altogether if the pollution travels any distance through groundwater? Recently, the U.S. Courts of Appeals for the Ninth and Fourth Circuits ruled in favor of Clean Water Act protections, while the Sixth Circuit simply held that the Clean Water Act does not apply. Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018); Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018); Tennessee Clean Water Network v. TVA, 905 F.3d 436 (6th Cir. 2018). That circuit split led the U.S. Supreme Court to agree to review the Ninth Circuit’s decision next term.
Here’s a preview of what the Supreme Court will decide.