Supreme Court Requests DOJ Input on Groundwater Litigation

Supreme_Court_Bldg_reszd(December 11, 2018) - As it considers whether to accept review over two cases that address whether the release of a pollutant that travels through groundwater to reach a Clean Water Act (CWA) jurisdictional surface water constitute a “point source” discharge, the US Supreme Court on December 3 invited the Solicitor General to file a brief representing the position of the United States by January 4, 2019.

Pending before the Court are petitions for writ of certiorari in County of Maui v. Hawaii Wildlife Fund and Upstate Forever v. Kinder Morgan, and the Court considered both petitions during its November 30 conference before issuing the invitation to the Solicitor General. 

The United States filed a brief in the Ninth Circuit in support of the environmental group plaintiffs in County of Maui, in which it argued that releases of pollutants to groundwater with a direct hydrologic connection to surface water are subject to section 402 of the CWA—known as the “DHC theory.”  The Ninth Circuit rejected this theory, instead creating its own test for liability. The Fourth Circuit however, in deciding Kinder Morgan, adopted the DHC theory.  Given the change in administration since the filing of the Maui brief, and EPA’s request for comments on its prior statements regarding the DHC theory, it is unclear whether the United States will continue to argue in favor of the theory.

NACWA filed a brief on September 28, along with a coalition representing the clean water sector, in support of the Court’s review of the Maui petition. 

For more information on this issue, see NACWA Summary: CWA Point Source Liability for Discharge of Pollutants Via Groundwater or contact Amanda Waters or Erica Spitzig, NACWA’s General Counsel and Deputy General Counsel.