The definition of waters of the United States is central to the CWA. At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program. 33 U.S.C. § 1311(a). “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,” and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” See 33 U.S.C. §§ 1362(7), (12) and (14).
The jurisdictional reach of the Clean Water Act (“CWA”) finally may be clarified, if the U.S. Supreme Court grants one or more recent cert petitions now before the Court. One set of petitions concerns whether the Clean Water Act covers discharges through groundwater to a surface “water of the United States.” The other petition directly addresses the definition of “waters of the United States.” Taken together, these could lead to the Court’s most important statements on the jurisdictional scope of the CWA since Rapanos v. United States, 547 U.S. 715 (2006), a plurality ruling over which much ink has been spilled as to how the decision should be interpreted. The Court may thereby provide clarity even before the Environmental Protection Agency (“EPA”) and Army Corps of Engineers complete their ongoing effort to revise the regulatory definition of “waters of the United States.”
Maui and Upstate Forever—Discharge to groundwater
Two recent cert petitions address whether a discharge through groundwater is an addition of a pollutant to waters of the United States from a point source. See Petition for Writ of Certiorari, Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 (Aug. 27, 2018) and Petition for Writ of Certiorari, Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268 (Aug. 28, 2018).1
As we have written previously, in Maui, the County operated a wastewater treatment facility that used underground wells to dispose of treated sewage. Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 742 (9th Cir. 2018). Despite the fact that the pollutants traveled through a nonpoint source (the groundwater) before reaching a water of the United States (the Pacific Ocean), the Ninth Circuit held the CWA covered Maui’s discharges since the original discharge was “from a point source,” “the pollutants are fairly traceable from the point source to a navigable water,” and “the pollutant levels reaching navigable water are more than de minimis.” Id. at 749. Likewise, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651-52 (4th Cir. 2018), the Fourth Circuit held that unrecovered gasoline from a pipeline spill that traveled through groundwater to a surface water body violated the CWA due to the evidence of a “direct hydrological connection between [the] ground water and navigable waters….”2
As there is now a circuit split between the Fourth and Ninth Circuits on the one hand and the Fifth, Sixth, and Seventh Circuits on the other, this question is one the Court may choose to take on. Compare Maui, supra, Upstate Forever, supra, and Sierra Club v. Va. Elec. & Power Co., Case No. 17-1895, slip. op at 12, 13-14 (4th Cir. Sept. 12, 2018) (recognizing Upstate Forever, but holding coal ash landfills and basins are not point sources), with Kentucky Waterways Alliance v. Kentucky Utils. Co., Case No. 18-5115, slip. op at 9-10, 12 (6th Cir. Sept. 24, 2018) (groundwater is not a point source and discharges must be directly from point source to waters of the United States); Tennessee Clean Water Network v. Tennessee Valley Auth., Case No. 17-6155, slip. op at 9 (6th Cir. Sept. 24, 2018) (same); Rice v. Harken Exploration Co., 250 F.3d 264, 271-72 (5th Cir. 2001) (rejecting theory that most discharges through groundwater are covered by analogous language in the Oil Pollution Act); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) (foreclosing theory that discharges via groundwater to surface water bodies are covered by the CWA).
Moreover, on November 7, the day after briefing closed, the Supreme Court distributed the petitions for conference on November 30, a relatively fast schedule potentially indicating the importance the Court ascribes to the issues raised.
Robertson—Definition of “waters of the United States.”
A third cert petition to watch is in Robertson v. United States, Case No. 18-609 (Nov. 7, 2018). There, the defendant had constructed ponds and discharged dredge and fill material into nearby wetlands and an adjacent tributary of a creek, which is itself a tributary of a river that is a tributary of a traditionally navigable river. United States v. Robertson, 875 F.3d 1281, 1286 (9th Cir. 2017). The Ninth Circuit reaffirmed its earlier holding that Justice Kennedy’s “significant nexus” test from Rapanos governs whether a waterway is navigable, as well as that the term “waters of the United States” was not unconstitutionally vague in the criminal context. Id. at 1292-93. The petition explicitly asked the Court to address both issues—whether the term “navigable waters” is unconstitutionally vague and to revisit its plurality in Rapanos. Robertson Petition at i, ii.
Stakeholders should pay special attention to the fate of these three petitions. If the Supreme Court takes up one or more of these cases, the Court could alter the jurisdictional prerequisite to CWA regulation in a fundamental way, implicating everything from which facilities need to obtain NPDES permits to what types of dredge and fill activities are federally regulated. Stay tuned.
2. The cert petitions also raise other issues, including whether an ongoing discharge occurs when a point source has permanently ceased discharging pollutants, but previously discharged pollutants from that point source are still migrating towards navigable water via groundwater. E.g., Upstate Forever Petition. at i. As discussed previously, this issue is a particularly important in determining whether a citizen suit plaintiff has a viable claim.
JAN. 7 UPDATE: On Jan. 3, 2019, as requested by the Supreme Court, the Solicitor General filed the same amicus curiae brief in both the Maui and Upstate Forever litigation, expressing the opinion of the United States on the pending certiorari petitions in those cases. Brief for the United States as Amicus Curiae, Cty. of Maui v. Hawai’i Wildlife Fund, Case No. 18-260 (U.S. Jan. 3, 2019). In the brief, the United States urged the Supreme Court to accept only the Maui case for certiorari, and only on the issue of whether the Clean Water Act covers discharges through groundwater to waters of the United States, while holding the Upstate Forever petition in reserve until such time as the Maui petition is granted or denied. Br. at 20. The United States argued that the Maui case was a better vehicle for addressing the indirect discharge issue than Upstate Forever, in part since the separate issue of whether an ongoing violation had occurred was a threshold concern in Upstate Forever. Id. at 15. The United States asserted that a decision by the Supreme Court to grant the Maui petition would resolve an important circuit split “on the proper reading of the CWA’s definition of the term ‘discharge of a pollutant’” which “has the potential to affect federal, state, and tribal regulatory efforts in innumerable circumstances nationwide.” Id. at 12, 13. The brief also noted that EPA was separately planning on taking action “within the next several weeks” in response to its February 2018 request for comment on the topic of Clean Water Act authority over discharges through groundwater to surface water bodies. Id. at 14.
DEC. 10 UPDATE: On December 3, the U.S. Supreme Court updated the dockets for the petitions for certiorari pending in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268, inviting the Solicitor General to file briefs in both cases by January 4, 2019 expressing the views of the United States on whether the Clean Water Act covers discharges through groundwater to a surface “water of the United States.” This certainly indicates the seriousness with which the Court is considering whether to grant these two petitions. In its filings, the United States will have the opportunity to reconsider its view on the jurisdictional scope of the Clean Water Act since the government filed an amicus brief in the Maui litigation before the Ninth Circuit in May 2016. There, the U.S. argued that point source discharges of pollutants to jurisdictional surface waters through groundwater “with a direct hydrological connection” are regulated under the CWA. See Brief for the United States as Amicus Curiae at 26, Hawai’I Wildlife Fund v. Cty. of Maui, Case No. 15-17447 (9th Cir. May 31, 2016). That brief was filed during the Obama administration, and it is anticipated that the current administration will offer a narrower reading of the CWA’s jurisdictional reach.