Solicitor General’s Views to Supreme Court on Two Circuit Court Rulings that Groundwater Can be Considered “Waters of the United States”

On December 3, 2018, the U.S. Supreme Court invited the Solicitor’s views on the contested issues whether discharges to groundwater are subject to an he National Pollutant Discharge Elimination System (NPDES) permit, and whether there is an “ongoing violation” of the Clean Water Act for Citizen Suit jurisdiction when the source of the pipeline spill has been fixed, yet not all pollutants have been cleaned up.

In its January 3, 2019 Brief for the United States as Amicus Curiae, the Solicitor General recommends that the Court accept review of Hawai’i Wildlife Fund, et al., v. County of Maui, Hawaii, because there is a clear conflict in the circuits. He also recommends that Upstate Forever, et al., v. Kinder Morgan Energy Partners, L.P. can await the disposition of the County of Maui appeal, and that there is no need now to take up the “ongoing discharge” issue in the Kinder Morgan case.