On February 19, 2019, the US Supreme Court announced that it will review the question of whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. There have been conflicting decisions in several federal circuit courts on this issue; the Ninth Circuit decision in Maui v. Hawaii Wildlife Fund – which held there was CWA liability – will be the vehicle used for the Supreme Court’s review.
This announcement sets up one of the most significant CWA arguments before the High Court in years, with significant potential impact on public clean water utilities. If the Supreme Court agrees with the lower court ruling, wastewater and stormwater utilities across the nation could find themselves with CWA liability for underground exfiltration from collection systems and facilities – even small underground leaks – that reach groundwater and eventually end up in nearby surface waters. A negative decision could also potentially impede the implementation of beneficial reuse projects by requiring duplicative and costly NPDES permits in addition to other federal/state permits in cases where the recycled water may be connected to jurisdictional surface waters via groundwater. Green infrastructure – intended to treat stormwater to further the water quality protection goals of the CWA – is also at risk of being regulated as point sources of pollutants subject to CWA jurisdiction. This could expose utilities to unnecessary citizen suit enforcement for alleged regulatory noncompliance, and attorneys’ fees awards, potentially diverting limited resources from projects and programs that do far more to improve water quality and protect human health.
A strong public clean water voice in this litigation is critical. NACWA is taking the lead on filing a public sector amicus brief in this litigation. Should your organization want to join the brief or coordinate with NACWA as you plan your own brief, please contact Amanda Waters, NACWA General Counsel. Although the court’s order did not set a hearing date, amicus briefs in support of Maui will be due in early April with oral argument expected in the Fall.