As anticipated, on February 19, 2019 the U.S. Supreme Court acted as recommended by the U.S. Solicitor General (“SG”) and granted certiorari in one of two Clean Water Act (“CWA”) citizen suits for which Petitions for Certiorari were pending, Hawaii Wildlife Fund v County of Maui, 886 F 3d 737[9^th Cir.; March 30, 2018].

The CWA requires a permit under the National Pollutant Discharge Elimination System (“NPDES”) or a state counterpart program for any discharge of a pollutant from a point source into the waters of the United States. A typical NPDES permit circumstance involves a pipe discharging pollutants directly into the waters of the U.S. The emerging theory is that pollutant discharges from a point source that travel through the ground to reach the waters of the U.S., rather than being discharged directly into U.S. waters, also violate the CWA.  This application of the CWA is termed the “conduit” theory. EPA’s position has been that CWA jurisdiction does extend to pollutants traveling through the ground only if a direct hydrologically connection to the waters of the U.S. can be demonstrated.

The County of Maui operates injection wells into which it discharges treated wastewater.  It is undisputed that the treated water constitutes a pollutant and that it can be traced and shown to be reaching the Pacific Ocean. In Hawaii Wildlife Fund v County of Maui, 886 F 3d 737[9^thCir.; March 30, 2018] the Court upheld a District Court decision finding a violation of the CWA on the theory that a discharge into the waters of the U.S. that was first injected into the ground and then migrated into the Pacific Ocean can still be characterized as originating from a point source, notwithstanding the lack of a direct discharge from the point source to the waters of the U.S. The County then filed a Petition for Certiorari.

Although in submitting the recommendation to grant certiorari the Solicitor General did not take position on the merits of the case, it is anticipated that the U.S. will support the County and oppose the conduit theory.  In its amicus brief the Solicitor’s office stated that EPA would soon be issuing guidance on this topic, but so far no guidance has been issued.

Given the timing of the grant within the 2018-2019 term, this matter will not be heard until the 2019-2020 term. Extensive amicus participation is anticipated.