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.
