On February 1, 2018, the Ninth Circuit issued a decision in Hawai’i Wildlife Fund, 886 F.3d 737 (9th Circ. 2018), that has the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA).  For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters.  The Ninth Circuit rejected this assumption, holding that a “discharge” requiring a permit occurs whenever pollutants in a water body can be “traced back” to a specific point source, even when the point source did not directly convey pollutants to surface waters.

Citing the potential for the Ninth Circuit’s decision to transform the NPDES program, the County of Maui filed a petition for writ of certiorari asking the Supreme Court to review the Ninth Circuit’s decision.  The County argues that the Ninth Circuit’s decision conflicts with the Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), as well as a number of decisions in various federal courts of appeals.  The petition also points out that the decision below, if not reversed, would expand the NPDES program in ways that Congress could not have intended.  The County specifically highlights the risks posed to entities that—like the County—use underground injection wells to dispose of wastewater, as well as homeowners who use septic systems. 

If the Supreme Court grants certiorari, the justices would have the opportunity to resolve a hotly-disputed issue pending before EPA and multiple federal courts.  Earlier this year, EPA sought public comment on whether requiring permits for pollutant discharges that reach jurisdictional surface waters via groundwater or other subsurface flow is consistent with the text, structure, and purposes of the CWA.  The Fourth Circuit also addressed the “indirect discharge” issue in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (2018), in which a divided panel held that a release from a point source and pollutants reaching navigable waters only must be “sufficiently connected” in order to require an NPDES permit.  Cases pending in Second and Sixth Circuit may also require these courts to weigh in on this issue.  26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.).

Anyone concerned about the threat of an expanded NPDES program—and associated liability for unpermitted discharges—can urge the justices to grant the County of Maui’s cert petition.  Amicus briefs supporting the petition are due on September 26, 2018.