Courts are starting to apply the Supreme Court’s new standard under County of Maui to claims under the Clean Water Act, highlighting the fact-intensive and highly technical nature of the relevant inquiry.
Continue Reading Courts Begin to Apply County of Maui to Clean Water Act Claims
In April 2020, the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund et al., 140 S. Ct. 1462 (2000), vacating the Ninth Circuit’s decision. The appeals court had affirmed a district court’s finding of Clean Water Act (“CWA”) liability for the County’s alleged failure to obtain a discharge permit for subsurface releases of pollutants into groundwater that conveys pollutants to navigable waters. In vacating the judgment below, the Supreme Court rejected the Ninth Circuit’s “fairly traceable” test and set forth a new standard for determining when a source needs an NPDES permit: “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” Id. at 1468 (emphasis added). In other words, “an addition falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” Id. at 1476 (emphasis added).
Continue Reading Groups Seeking to Expand Reach of Clean Water Act
Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws.
Continue Reading County of Maui v. Hawai’i Wildlife Fund: Supreme Court Rejects Ninth Circuit’s Expansive Test for NPDES Permitting Under Clean Water Act, Requires Direct Discharges to Navigable Waters or Functional Equivalent of a Direct Discharge
For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy. Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate. The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court.
Continue Reading New Lawsuit Seeks to Expand the Reach of the Clean Water Act to Air Emissions