Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Maui County Votes to Settle CWA Suit Pending Before Supreme Court

Author: Daniel T. McKillop

Date: October 9, 2019

Key Contacts

Back

Last Month, the Maui County Council Voted to Settle County of Maui v. Hawai’i Wildlife Fund, a High-Profile CWA Suit

On September 20, 2019, the Maui County Council voted to settle County of Maui v. Hawai’i Wildlife Fund, a high-profile case involving the scope of the Clean Water Act (CWA). The U.S. Supreme Court is scheduled to consider the case this November.

Maui County Votes to Settle CWA Suit Pending Before Supreme Court

While the Council voted 5-4 to resolve the case, the litigation may not be over. Several council members, along with Maui County Mayor Mike Victorino, maintain that the county can’t formally dismiss the case without the Mayor’s approval. So far, Victorino has resisted settlement. If the settlement proceeds, Maui County will be required to pursue a National Pollutant Discharge Elimination System permit for the injection wells and invest approximately $2.5 million in wastewater reuse systems.

County of Maui v. Hawai’i Wildlife Fund

As discussed in greater detail in prior articles, County of Maui v. Hawai’i Wildlife Fund revolves around whether the CWA regulates pollution that reaches surface water via groundwater. The federal courts of appeals are deeply divided on the question.

The Ninth Circuit Court of Appeals adopted an expansive interpretation of the CWA’s reach. It held that that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County of Maui was liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater than de minimis levels.

“At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit,” the Ninth Circuit explained. “It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.”

The Ninth Circuit’s decision is at odds with the Sixth Circuit. In Clean Water Act Network v. Tenn. Valley Auth. and Kentucky Waterways All. v. Kentucky Utils. Co., the appeals court declined to impose liability for indirect discharges of pollution to federally protected water via groundwater. That case, which was on the Supreme Court’s docket, also settled.

The Environmental Protection Agency’s (EPA) interpretation of the CWA is also narrow. According to EPA guidance issued in April, discharges of pollutants to groundwater are “categorically excluded” from the CWA’s permitting requirements. “Informed by [public] comments and based on a holistic analysis of the statute, its text, structure, and legislative history, the Agency concludes that the best, if not the only, reading of the CWA is that Congress intentionally chose to exclude all releases of pollutants to groundwaters from the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater,” the EPA wrote.

Another CWA Case for the Supreme Court

Assuming that the Maui County case is settled, the U.S. Supreme Court may agree to take up yet another case involving the CWA. In Kinder Morgan Energy Partners LP v. Upstate Forever, the Fourth Circuit adopted similar reasoning, holding that the discharge of a pollutant that moves through groundwater before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA.  However, it further held that a plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through groundwater.

If the Court agrees to hear Kinder Morgan, the justices will again be in the position to resolve the circuit split over the scope of the CWA. Given the potential ramifications for the regulated community, the attorneys of the Scarinci Hollenbeck Environmental Law Group will continue to closely monitor the cases, and we encourage readers to check back for updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Dissolving Your Business: Essential Legal Steps to Protect Your Interests post image

Dissolving Your Business: Essential Legal Steps to Protect Your Interests

If you’re considering closing your business, it’s crucial to understand that simply shutting your doors does not end your legal obligations. Unless you formally dissolve your business, it continues to exist in the eyes of the law—leaving you exposed to ongoing liabilities such as taxes, compliance violations, and potential lawsuits. Dissolving a business can seem […]

Author: Christopher D. Warren

Link to post with title - "Dissolving Your Business: Essential Legal Steps to Protect Your Interests"
The Role of Corporate Restructuring in Mergers & Acquisitions post image

The Role of Corporate Restructuring in Mergers & Acquisitions

Contrary to what many people think, corporate restructuring isn’t all doom and gloom. Revamping a company’s organizational structure, corporate hierarchy, or operations procedures can help keep your business competitive. This is particularly true during challenging times. Corporate restructuring plays a critical role in modern business strategy. It helps companies adapt quickly to market changes. Following […]

Author: Dan Brecher

Link to post with title - "The Role of Corporate Restructuring in Mergers & Acquisitions"
Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public post image

Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public

Cryptocurrency intimidates most people. The reason is straightforward. People fear what they do not understand. When confusion sets in, the common reaction is either to ignore the subject entirely or to mistrust it. For years, that is exactly how most of the public and even many in law enforcement treated cryptocurrency. However, such apprehension changed […]

Author: Bryce S. Robins

Link to post with title - "Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public"
Understanding Chattel Paper: A Key Component in Secured Transactions post image

Understanding Chattel Paper: A Key Component in Secured Transactions

Using chattel paper to obtain a security interest in personal property is a powerful tool. It can ensure lenders have a legal claim on collateral ranging from inventory to intellectual property. To reduce risk and protect your legal rights, businesses and lenders should understand the legal framework. This framework governs the creation, sale, and enforcement […]

Author: Dan Brecher

Link to post with title - "Understanding Chattel Paper: A Key Component in Secured Transactions"
Crypto Compliance: A Comprehensive Guide post image

Crypto Compliance: A Comprehensive Guide

For years, digital assets operated in a legal gray area, a frontier where innovation outpaced the reach of regulators and law enforcement. In this early “Wild West” phase of finance, crypto startups thrived under minimal oversight. That era, however, is coming to an end. The importance of crypto compliance has become paramount as cryptocurrency has […]

Author: Bryce S. Robins

Link to post with title - "Crypto Compliance: A Comprehensive Guide"
Supreme Court and Title VII: Implications for Reverse Discrimination post image

Supreme Court and Title VII: Implications for Reverse Discrimination

Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]

Author: Matthew F. Mimnaugh

Link to post with title - "Supreme Court and Title VII: Implications for Reverse Discrimination"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!