SCOTUS Seeks Views of Solicitor General in Groundwater Cases

On December 3, 2018, the Supreme Court of the United States took a rare step in specifying a deadline by which the U.S. Solicitor General may offer input in two certiorari petitions involving the scope of the Clean Water Act. According to, the move could signal an intent "to ensure that the justices could if they decide to grant review, hear oral arguments and decide the cases by the end of the current term." In both cases, County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy Partners LP v. Upstate Forever, the petitioners seek review of Ninth and Fourth Circuit determinations that discharges of pollutants into groundwater are within the scope of the Clean Water Act if the groundwater is sufficiently hydrologically connected to navigable surface waters. The Sixth Circuit has rejected such arguments, holding in two coal ash cases last September that groundwater is not a "point source," and therefore, the Clean Water Act does not extend liability to pollution that reaches navigable surface through groundwater.

The Solicitor General has until January 4, 2019, to file briefs. Stakeholders, including the regulated community, states with Clean Water Act permitting authority, and environmental advocacy groups, will be keeping a close watch to learn the government's current position on the issue. The Burr & Forman Environment & Land Use Team will also be eager to see how these cases play out and will be sure to provide our updated analysis. For additional information on these matters, take a look at the original post on the SCOTUS blog here and the SCOTUS Order here.

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