Earlier this year, the Fourth and Ninth Circuits decided a pair of cases that have the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit program under the Clean Water Act (CWA). For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters. In Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018), both courts rejected this assumption by holding that pollutants reaching surface waters via groundwater required NPDES permits.

The Fourth and Ninth Circuit each articulated their own standard for when releases to groundwater require a NPDES permit. In Upstate Forever, the Fourth Circuit held that a discharge occurs when a pollutant reaches surface waters through means that “are sufficiently connected,” such as groundwater that has a “direct hydrological connection” to surface waters. The Ninth Circuit set an even broader standard, under which a “discharge” requiring a permit occurs whenever pollutants in a water body can be “traced back” to a specific point source.

The Fourth Circuit also held that a release of pollutants that has ceased can be the basis for a citizen suit if the pollutants continue to migrate to surface waters through soil or groundwater. A plaintiff must allege an ongoing violation of the CWA in order to sustain a citizen suit. See Gwaltney v. Chesapeake Bay Found., 484 U.S. 49 (1987). In Upstate Forever the pipeline alleged to have discharged to surface waters was no longer discharging. Nonetheless, the Fourth Circuit held that continued migration of pollutants from a past discharge is an ongoing discharge that can be the basis for a citizen suit.

Both petitions warn the justices that these two cases threaten to transform the NPDES program and the scope of liability under the CWA. In County of Maui, the petition argues that the Ninth Circuit’s decision conflicts with the Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), as well as a number of decisions in various federal courts of appeals holding that “indirect” discharges do not require NPDES permits. The Upstate Forever petitionsimilarly argues that a circuit split exists, while also warning that the opinion below threatens states’ authority to regulate pollution of groundwater and soil. This petition also highlights how the Fourth Circuit’s reading of Gwaltneythreatens to greatly expand citizen enforcement of the CWA.

If the Supreme Court grants certiorari in either case, the justices would have the opportunity to resolve a hotly-disputed issue pending before EPA and two other courts of appeals. Earlier this year, EPA sought public comment on whether requiring permits for pollutant discharges that reach jurisdictional surface waters via groundwater or other subsurface flow is consistent with the text, structure, and purposes of the CWA. Cases pending in the Second and Sixth Circuits may also require these courts to weigh in on this issue. 26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.).

Anyone concerned about the threat of an expanded NPDES program—and associated liability for unpermitted discharges—can urge the justices to grant these petitions for writs of certiorari. Amicus briefs are due on September 26, 2018 in County of Maui and on September 27, 2018 in Upstate Forever.

Beveridge & Diamond’s Water practice group develops creative, strategically tailored solutions to challenges that arise under the nation’s clean water laws. The firm’s attorneys have represented clients in a range of industries in project planning as well as in litigation and enforcement proceedings on issues arising from the growing convergence of water supply, use, and quality issues. For more information, please contact the authors.