Justices to review high-stakes Clean Water Act fight

The Supreme Court is set to take up a critical debate over the scope of federal water protections.

The justices today agreed to hear what amounts to the biggest environmental case of this year: a dispute over which types of pollution discharges trigger the Clean Water Act.

The issue reached the high court in two different cases: County of Maui, Hawaii v. Hawai'i Wildlife Fund and Kinder Morgan Energy Partners LP v. Upstate Forever. The justices will hear the first one.

Both raise this critical question: If a pollutant travels through groundwater before reaching a federally regulated waterway, does the Clean Water Act apply?

The Maui case involves the discharge of municipal wastewater into injection wells. Environmentalists allege the county needed a Clean Water Act permit for the discharges because the wastewater seeped through groundwater and ended up in the Pacific Ocean.


The Kinder Morgan case involves the rupture of a gasoline pipeline in South Carolina. The fuel leaked into groundwater and reached nearby streams. The court took no action on the dispute today, and will likely resolve it after it decides the Maui case.

Circuit courts agreed with environmental groups in both cases that the Clean Water Act — which governs the discharge of pollutants from discrete "point sources" into "waters of the United States" — applies even when the pollution migrates through groundwater before reaching a waterway that is subject to federal jurisdiction (Greenwire, Dec. 4, 2018).

Proponents of that Clean Water Act interpretation, sometimes called the conduit theory, say excluding pollution-via-groundwater from the statute would amount to a huge loophole for polluters.

Critics say the theory drastically expands the law to cover discharges of pollutants into groundwater, which is generally subject to state oversight.

Judges have gone both ways on the issue in different cases, and the Trump administration earlier this month urged the Supreme Court to step in to resolve the split. Separately, EPA is working on an update to its own policy for discharges through groundwater (Greenwire, Jan. 4).

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