Groundwater Pollution Liability Under Clean Water Act to be Reviewed by U.S. Supreme Court

On February 19, the U.S. Supreme Court granted certiorari to review a unanimous decision by a panel of the Ninth Circuit Court of Appeals that underground wastewater injection into a groundwater channel that flows to the Pacific Ocean requires a permit under the Clean Water Act.  The Ninth Circuit decision, Hawai’i Wildlife Fund, et al v. County of Maui, 886 F.3d 737 (9^th Cir. 2018), is one of two Circuit Court cases finding liability under the Clean Water Act for unpermitted discharges of pollutants to groundwater for which certiorari petitions are pending in the Supreme Court.  The Order issued on February 19 left unresolved the certiorari petition in Upstate Forever, et al., v. Kinder Morgan Energy Partners, 887 F.3d 637 (4^th Circuit 2018).

In granting certiorari, the Court limited its review to question 1 in the certiorari Petition:  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.  The Court’s decision on that issue will affect not only the 9^th Circuit and 4^th Circuit cases, but also a 6^th Circuit case that found no CWA liability for discharges to groundwater, and several pending District Court cases.

For more information on the CWA groundwater liability issue, contact Steve O’Day.

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