Solicitor General Tells SCOTUS EPA Poised to Act on CWA Comments
On Jan. 3, 2019, the Solicitor General filed a Brief for the United States as Amicus Curiae in response to an order issued Dec. 3, 2018, which "called for the views of the Solicitor General" (CVSG) in connection with two petitions for writ of certiorari pending before the Supreme Court of the United States (SCOTUS). The petitions filed within days of each other are expected to resolve the long-standing question of whether discharges of pollutants to groundwater with a direct hydrologic connection to surface water are or should be regulated under the National Pollutant Discharge Elimination System (NPDES) program.
The County of Maui, Hawaii filed its cert. petition in docket no. 18-260 on Aug. 27, 2018, seeking to overturn the Ninth Circuit decision in Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018). One day later, on Aug. 28, 2018, Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc. filed their cert. petition in docket no. 18-268 seeking to overturn the Fourth Circuit decision in Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637 (4th Cir. 2018). Although factually distinct, both cases raise questions as to whether these discharges require a NPDES permit or risk being identified as an unpermitted discharge in violation of the Clean Water Act.
The Solicitor General's brief urges SCOTUS to act on Maui's petition while holding the Kinder Morgan petition. This should not come as a surprise to those following these proceedings. Debate has been fueled by a long history of statements by the U.S. Environmental Protection Agency (EPA) during rulemaking and permit proceedings and by numerous cases making their way through the courts currently. In addition, as described in a prior blog post, the EPA renewed its interest in the subject earlier this year by publishing a notice seeking comments on a broad range of topics related to the question of whether the NPDES program should be used to regulate discharges of pollutants to groundwater which have a direct hydrologic connection to surface water.
What may come as a surprise, however, is the Solicitor General's statement buried on page 14 of the brief that the "EPA has informed this Office that it expects to take further action, reflecting the results of its review, within the next several weeks." Only time will tell whether and when the EPA will act given the current partial government shutdown.