Potential Settlement Clouds Outcome of Key CWA Legal Case

(September 11, 2019) – Although the U.S. Supreme Court is set to hear arguments November 6 on a critical Clean Water Act (CWA) case, there is new uncertainty as to whether this case will ultimately be argued before the High Court.  Late last week, a Committee of the Maui County, Hawaii Council voted to accept a settlement offer in Hawaii Wildlife Fund v. County of Maui from the environmental groups that brought the litigation more than seven years ago. 

NACWA previously filed a brief in the case in support of its member agency, the Maui County Department of Environmental Management, and is working with the utility and other stakeholders to encourage the full County Council to proceed with the litigation. 

The key legal question in this case is whether the CWA requires a National Pollutant Discharge Elimination System (NPDES) permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater. This question has come up in numerous circuits resulting in a circuit split and regulatory uncertainty.

In May 2019, NACWA – along with Association members the City and County of San Francisco, New York City, and the Denver Metro Wastewater Reclamation District - filed a brief with the Supreme Court in support of Maui County and opposing this new legal theory of liability under the CWA.  

NACWA also recently submitted a letter to a Maui Council Committee to convey the national public clean water sector perspective, highlighting that this is a nonpartisan issue and will not result in “rollbacks” of the CWA.  Local governments and public clean water utilities all across the nation – including NACWA’s members – stand strongly behind Maui in this ligation.  

Despite the false narratives and scare tactics being used by some to encourage the County to settle the litigation, this case is not about “rolling back” CWA or “gutting” the CWA.  Instead, this case is about appropriately implementing the CWA as intended by Congress and providing local governments with predictable legal and regulatory requirements to best spend local ratepayer dollars for maximum protection of the environment and public health. 

The full Maui County Council must still vote on the potential settlement, which is expected to occur on September 20, and then the decision goes to the Maui County Mayor for consideration.  The Mayor understands the importance of this case and has gone on record supporting Supreme Court resolution of the matter.

NACWA will be weighing in with both the Council and the Mayor to underscore the importance of this issue from a national perspective.  Until the legal question at issue is resolved either by the Supreme Court or Congress, regulatory uncertainty will persist.

NACWA members with concerns about the impact of this case are also encouraged to submit a letter of support encouraging continuation of the litigation.  Members with any questions can also contact Amanda Waters, NACWA’s General Counsel.