County of Maui, Hawaii v. Hawaii Wildlife Fund (No. 18-260)
Issues
Under the Clean Water Act, is a permit required for a point source that transmits pollutants to navigable waters through an intermediary nonpoint source, such as groundwater?
This case asks the Supreme Court to determine whether pollution added to navigable waters through a nonpoint source is regulated by the Clean Water Act (“CWA”). A point source is a discernable, confined, and discrete conveyance that includes pipes, ditches, and other clearly discernable means from which pollutants are or can be discharged into navigable waters. County of Maui (“Maui”) contends that pollutants that enter navigable waters through nonpoint sources, like groundwater, are too attenuated to attach liability under the CWA. Maui argues that pollutants that enter navigable waters through nonpoint sources are not added “directly to” navigable water and thus fall outside the scope of 33 U.S.C. § 1362(12)(A), the statute that codifies which pollutant discharges are subject to the CWA’s permit requirements. Hawai’i Wildlife Fund (“HWF”) counters that Maui’s reading is underinclusive and that the CWA’s intended purpose is to regulate pollutants not just added directly to navigable waters, but also those that were simply added to navigable waters. HWF argues that discharges of pollutants to nonpoint sources which then enter navigable waters fall within the meaning of “discharge of a pollutant” under the CWA. The outcome of this case has important implications for the continued viability of the National Pollutant Discharge Elimination System’s permit program, the divide between federal and state control of groundwater regulations, and the fiscal impact that the CWA has on individual landowners.
Questions as Framed for the Court by the Parties
Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
In 1972, Congress passed 33 U.S.C. § 1251, or the Clean Water Act (“CWA” or “Act”), to preserve the “Nation’s waters” by prohibiting the “discharge of any pollutant” unless certain requirements in the Act are met. Hawai'i Wildlife Fund v.
Written by
Edited by
Additional Resources
- Axel Beers: County of Maui v. Hawaii Wildlife Fund: The Lawsuit Against Maui County Being Watched Around the Country, MauiTime (Aug. 30, 2019).
- Juan C. Rodriguez: 4 High Court Cases Enviro Attys Should Watch This Term, Law360 (Oct. 4, 2019).
- Norman A. Dupont: County of Maui v. Hawai’i Wildlife Fund: A Preview of the Supreme Court’s Review of Clean Water Act Jurisdiction over Groundwater, ABA (May 10, 2019).