Legal Webinar Focus on Conduit Theory Litigation

six(March 13, 2018) - The latest installment of the Hot Topics in Clean Water Law webinar series, hosted on March 7, covered new and developing issues in clean water law and drew more than 130 attendees.  The webinar featured a panel of expert clean water attorneys, with discussion focused on a recent decision of the U.S. Court of Appeals for the Ninth Circuit, and litigation pending in other circuits throughout the country.

On February 1, the Ninth Circuit held in Hawaii Wildlife Fund v. County of Maui that discharges through groundwater that reach navigable waters are subject to regulation under the CWA, so long as the pollutants are fairly traceable to the point source, and the pollutant levels are more than de minimis.  Several cases are pending in other federal appeals courts addressing the question of whether a point source discharge into groundwater that ultimately reaches navigable waters is subject to CWA requirements, and if so, when that liability is triggered.  On February 20, EPA published a Federal Register notice requesting comments as to whether the Agency should address the question through regulatory action.

Webinar participants discussed the potential impact of the litigation on the clean water sector, what a regulatory fix might look like, and what utilities should do in the interim.  And they also discussed next steps in the Maui litigation as well as the other pending cases.  The presenting panel, moderated by Amanda Waters, NACWA General Counsel, included Hilary Meltzer, Co-Chair of NACWA Legal Affairs Committee and Deputy Chief of the Environmental Law Division of the NYC Department of Law; Sam Brown, Senior Attorney at NACWA Legal Affiliate Hunton & Williams LLP; Andre Monette, Partner at NACWA Legal Affiliate Best Best & Krieger LLP; Patrick K. Wong, Corporation Counsel, Maui County, Department of Environmental Management; and Richelle Thomson, Deputy Corporation Counsel, Maui County, Department of Environmental Management.

NACWA encourages members interested in these and other legal issues to join the Legal Affairs Committee.  The next Hot Topics in Clean Water Law webinar is scheduled on June 20 from 2:00 - 3:30 pm ET.  Members are encouraged to submit potential topics to Erica Spitzig or Amanda Waters