The Maui County Council has voted to settle a Ninth Circuit U.S. Court of Appeals Clean Water Act (“CWA”) case scheduled for oral argument before the United States Supreme Court on November 6, 2019. County of Maui v. Hawaii Wildlife Fund et al., Case No. 18-260. The case was one of three pending before the U.S. Supreme Court seeking a determination of whether the CWA’s regulatory power is limited to regulating direct releases from discrete and defined sources into federally protected water or extends to indirect releases via groundwater.
The Ninth Circuit had ruled against Maui County, finding the CWA applies to wastewater injected underground that migrates into navigable waters where the groundwater into which the waste is discharged is hydrologically connected to the protected waterways. The Fourth Circuit soon followed suit in a similar case. Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268. The Sixth Circuit split from both of these Courts and rejected the hydrological connection theory as a basis for CWA liability. Tennessee Clean Water Network, et al. v. Tennessee Valley Authority (TVA), 913 F.3d 592 (6th Cir.), cert. dismissed, 2019 WL 1642756.
The Sixth Circuit CWA case has also settled, leaving only the Fourth Circuit case pending review by the Supreme Court. The decisions to settle come on the heels of the EPA’s April 15, 2019 Interpretative Statement, wherein the EPA concluded that releases of pollutants to groundwater are excluded from the CWA’s permitting requirements, regardless of whether that groundwater is hydrologically connected to surface water. The Interpretative Statement applies outside the Fourth Circuit, pending a decision by the Supreme Court.
It remains to be seen whether the Fourth Circuit case will be the means by which the hydrological connection theory is tested in the highest court in the land. Given the EPA’s stance on the issue and the withdrawal of the Sixth and Ninth Circuit petitions, we would not be shocked to see the Fourth Circuit case settled too.