Update: Supreme Court to Decide Whether the CWA Regulates Discharges through Groundwater to Waters of the United States

Sam Boxerman, Featured Expert Contributor, Environmental Law and Policy

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As we anticipated in our post last year, the Supreme Court has granted a petition for a writ of certiorari from the Ninth Circuit in County of Maui v. Hawaii Wildlife Fund. The justice will decide whether the Clean Water Act (CWA) regulates discharges through groundwater that reach a water of the United States (WOTUS). The certiorari grant embraced the Solicitor General’s view, who filed an amicus brief urging the Court to take the case and decide the groundwater discharge issue.

This issue has become a prominent one in CWA jurisprudence recently, with three circuit courts of appeals weighing in on the issue in five decisions in 2018 alone. The circuits are split; the Ninth Circuit and the Fourth Circuit have determined that the CWA does regulate discharges to groundwater, while the FifthSixth, and Seventh Circuits have held that it does not.

If the Court ultimately sustains the Ninth Circuit’s approach, Maui will have far reaching implications for CWA regulation and enforcement, particularly for spills and other releases that reach groundwater. Moreover, the Court is addressing the case at the same time that EPA and the Corps are receiving comments on their proposed revised definition of what is a water of the United States.  Although Maui is not expected to address the definition of WOTUS, the decision will bear close reading for any Supreme Court insights into that all-important Clean Water Act term.

The Court added Maui to the docket for its October Term 2019, which begins this fall on October 7.

*Sam Boxerman is a Partner in the Washington, DC office of Sidley Austin LLP.

 

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