The Solicitor General, on behalf of the United States, filed a brief in the United States Supreme Court in two Clean Water Act (CWA) citizen suit cases, County of Maui v. Hawai’i Wildlife Fund and Kinder Morgan v. Upstate Forever.  While private groups brought the cases, on December 3, 2018 the Court invited the Solicitor General to file a brief expressing the federal government’s views.

Government Supports Review of Hydrological Connection Theory
The Solicitor General’s brief, filed January 3, 2019, requests the Court to determine if a discharge subject to the CWA occurs when a pollutant released from a point source travels through groundwater to navigable waters.  As discussed in my prior alerts, plaintiffs in these CWA citizen suits argued, and the mid-level appellate courts accepted, that these discharges are subject to the CWA based on the “hydrological connection” theory.  The Solicitor General’s brief notes these federal appellate courts accepted the hydrological connection theory but that other courts rejected it.  The Solicitor General’s brief asks the US Supreme Court to resolve these conflicting decisions.

Government Supports Resolution but Does Not Advocate a Position
While saying the Court should resolve the conflicting decisions, the Solicitor General’s brief does not indicate if the government agrees or disagrees with the hydrological connection theory.  Rather, the brief simply requests the court resolve the conflict.  Certainly, the Solicitor General has assisted those opposed to the hydrological connection theory by saying the Court should resolve the conflict; however, the Solicitor General might have been more helpful by saying a rejection would not harm EPA’s enforcement of the CWA.

Government Supports Limited Supreme Court Review
The Solicitor General’s brief recommended the Court not consider other issues presented in the cases, which could have included if an ongoing CWA violation was necessary for courts to hear CWA citizen suits or what constitutes a “point source” under the CWA.  In keeping with this approach and due to different facts in the two cases, the Solicitor General’s brief says the Court should hear the appeal only in County of Maui v. Hawai’i Wildlife Fund and hold Kinder Morgan v. Upstate Forever until the former case is decided.

I mentioned in my prior alert the Court has yet to decide if it will hear the appeal of these cases, although requesting the view of the government is an indication that several members may be interested in hearing the appeal.  Also, the Court has no time in which it must decide if it will hear the appeal of these cases, but the Court will probably decide what issues, if any, it will hear before the Court’s term ends this summer.