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.
