The United States Supreme Court has asked the Solicitor General to weigh in on two petitions for writ of certiorari — one Fourth Circuit case, Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and the other a Ninth Circuit case, Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018).  The issue is whether the scope of the Clean Water Act extends to pollutants that travel through groundwater before reaching navigable waters. 

In Upstate Forever, a pipeline rupture leaked gas into the groundwater which ultimately made its way to nearby streams, that were considered navigable. The Fourth Circuit applied the “hydrological connection” test to invoke jurisdiction under the CWA. 

In County of Maui, pollutants from wastewater injection wells on the island migrated through groundwater and ultimately reached the Pacific Ocean.  The Ninth Circuit concluded the pollutants had a “fairly traceable” connection to a point source, i.e., the injection wells, and were covered by the CWA.

The issue is whether the pollutant discharges to groundwater or that migrate to groundwater and that groundwater then reaches a navigable water are subject to CWA jurisdiction.  Groundwater is not considered a navigable water subject to the CWA.  Rather, underground pollutions tend to fall under the Resource Conservation and Recovery Act or state laws.

If the Supreme Court ultimately reverses the appellate court rulings, liability under the CWA could be precluded for pollutants that are discharged to groundwater, but eventually reach a navigable waterway.  If affirmed, the scope of the CWA will extend to pollutants in groundwater that reach navigable water. If affirmed, it will be interesting to see whether the Court adopts the “hydrological connection” test, which is the position advanced by the EPA, or the “fairly traceable” test.  The Solicitor General has until January 4, 2019, to submit its brief to the Supreme Court.