This term, the United States Supreme Court is considering two petitions for certiorari that have significant implications for anyone who discharges pollutants to groundwater that may ultimately seep into navigable waters. The first case, Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), involves discharges of treated wastewater into Class V underground injection wells that are permitted under the Safe Drinking Water Act. Pollutants from the wells eventually (over 10 months at the earliest) seep into the Pacific Ocean, and conservation groups brought suit, arguing that the wells are required to obtain a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit for the wells. The Department of Justice (DOJ) submitted an amicus curiae on behalf of the EPA in support of the plaintiffs, arguing that pollutants discharged from a point source that reaches navigable water through groundwater with a “direct hydrologic connection” are subject to the NPDES permit requirement. The Ninth Circuit rejected the EPA’s test as not within the text of the statute, but the court went on to agree with the plaintiffs and create its own extratextual test whereby any discharge that is “fairly traceable” to a point source, and that is more than de minimis, must obtain a permit.

The second case, Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), involved a spill from a ruptured oil pipeline that spilled hundreds of thousands of gallons of gasoline into the soil. The rupture was repaired, and much of the gasoline was recovered, but two conservation groups brought suit, claiming that an NPDES permit was required for the remaining gasoline that was seeping through groundwater into nearby waterways. The Fourth Circuit agreed that an NPDES permit was required, this time adopting the EPA’s “direct hydrologic connection” test.

Both Kinder Morgan and the County of Maui filed petitions with the Supreme Court, which the court considered jointly during a conference on Nov. 30, 2018. Following the conference, on Dec. 3, the court invited the solicitor general to weigh in and provide the position of the United States on the issue.

On Jan. 3, the solicitor general responded with a brief urging the court to accept review, because the federal circuits are split on the issue—the Fourth and Ninth Circuits both agreed that the discharges are subject to the NPDES requirement, while the Sixth and Seventh Circuits have taken the opposite position. The solicitor general further argued that Maui is the appropriate vehicle for consideration of the issue because all parties to the litigation agree that the well constitutes a point source as defined in the statute.

The brief likely came as a relief to many in the regulated community who have been left without certainty as to whether and when discharges of pollutants to groundwater are subject to the NPDES permit requirement—an expensive question given the hefty civil penalties associated with discharging without a permit and the current onslaught of citizen suits on the issue. And it was reasonable to question whether or how the solicitor general would weigh in, given the DOJ amicus brief filed in Maui.

In May 2018, the EPA also requested comments from the public on its prior statements on the “direct hydrologic connection” theory, leaving many to wonder whether the court would weigh in before the EPA took some further action on the comments it received. The solicitor general’s brief addresses this point head on, explaining that the EPA “expects to take further action, reflecting the results of its review, within the next several weeks,” and arguing that this should not deter the court from reviewing either case, given that “the parties, therefore, should have the benefit of the EPA’s views before any brief on the merits is due, and the court can consider those views in deciding the issue on the merits.” Brief at 14.

With the filing of this brief, it is likely that the court will take up one or both of the petitions in the near future. The court’s decision, if certiorari is granted, will be important for many dischargers who are not currently required to obtain NPDES permits, many of whom will not fit within the traditional end of pipe parameters of the NDPES program. Taft will continue to monitor developments