water

Issues

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

Written by

Edited by

Additional Resources

Issues

This case presents the Supreme Court with the opportunity to review whether the Clean Water Act grants broad original and exclusive jurisdiction to the United States Courts of Appeals. Under the Administrative Procedure Act, agency actions are judicially reviewable by the federal district courts unless otherwise provided by congressional statute. One such provision—Section 1369(b) of the Clean Water Act—enumerates classes of agency actions that are originally and exclusively reviewable by the Courts of Appeals. In June 2015, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency jointly adopted a new rule redefining the phrase “waters of the United States.” The National Association of Manufacturers argues that challenges to this rule fall outside of the classes enumerated in Section 1369(b) and thus are not directly reviewable by the Courts of Appeals. The Department of Defense and U.S. Environmental Protection Agency, on the other hand, argue that Section 1369(b) should be read broadly and functionally as to include the rule. The outcome of this case will implicate judicial efficiency and thoroughness concerns.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources