Supreme Court Hears Case Deciding Reach of Clean Water Act

The U.S. Supreme Court heard oral arguments this past week (Wednesday, November 6) in a case that will decide the scope of the Clean Water Act (CWA) as it relates to subsurface injection of wastewater that may potentially reach surface waters. The critical question is whether releases of pollutants require National Pollutant Discharge Elimination System (NPDES) permits when they originate from a point source, but are conveyed to surface waters through a non-point source.

All eyes are on County of Maui v. Hawaii Wildlife Fund, et al., No. 18-260 to determine "where the line falls between the CWA's federal point source program and its state law nonpoint source program" (see transcript page 3, line 18, Oral Argument of Elbert Lin for the Petitioner).

Most news sources have reported that the Supreme Court seems reluctant to render a ruling that would include extreme cases caught in an expansion of Clean Water liability, but are equally concerned about the current situation in Maui. A ruling is expected next year.