The United States Supreme Court has granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al., No. 18-260, a Ninth Circuit case, as to the question of whether the Clean Water Act (“CWA”) requires a permit when pollutants originate from a point source discharge, but are conveyed to navigable waters by a nonpoint source, such as groundwater.  The Court will determine whether the National Pollution Discharge Elimination System (NPDES) program’s reach is limited, covering only “direct” discharges to navigated waterways, or expansive, covering discharges conveyed through non-point sources to navigate waterways.

The CWA states it does not apply to pollution that has been injected into groundwater.  However, the issue becomes less clear if groundwater seeps into a body of water to which the CWA does apply, such as a river, ocean or lake.  In County of Maui, the Ninth Circuit held the county’s discharge of pollutants into injection wells that indirectly enter the Pacific Ocean via groundwater, and are “fairly traceable” back to the point source, was a violation of the CWA.   

If affirmed, the case will significantly expand the EPA’s current understanding of the CWA, which is that a permit is only required when a discharge is into a groundwater that has a direct hydrological connection to a navigable water.  The outcome of the case has potentially far-reaching implications.  The Court’s decision could change the way factories, pipelines, and other industries discharge effluents and dispose of wastewater.