US Supreme Court to Decide CWA Issue

On February 19, 2019 the United States Supreme Court granted the writ of certiorari in the Clean Water Act (CWA) citizen suit case County of Maui v. Hawai’i Wildlife Fund.  This means the Court will call for full briefs and schedule oral argument in the case.

Review Limited to Hydrological Connection Theory
The review is limited to the single question of the availability of the “hydrological connection theory” for CWA enforcement.  That is, does a discharge requiring a CWA permit occur when a pollutant released from a point source travels through groundwater to navigable waters?  This limited review is consistent with the recommendation in the US Solicitor General's January 3, 2019 brief to the Supreme Court.  The Solicitor General’s brief asked the US Supreme Court to resolve the issue but did not indicate if the government agrees or disagrees with the hydrological connection theory.

Court Will Not Address other Issues
Appeals of two similar CWA cases were before the Court, County of Maui (which the Court will hear) and Kinder Morgan v. Upstate Forever In keeping with the Solicitor General’s recommendation, it appears the Court will hold Kinder Morgan until it decides County of Maui.  Also, the Court is not considering other issues presented in these 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.

Decision Expected in 2020
The Court has no time in which it must decide the case.  I expect oral argument during the next Supreme Court term, which begins October 2019, and a decision in 2020.

Prior Related Alerts
Below are links to my prior alerts regarding cases involving the “hydrological connection theory.”

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