Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as to the question of “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”
The Court did not take action on the other pending petition regarding this issue in Upstate Forever v. Kinder Morgan. However, the Supreme Court has shown interest in the Upstate Forever case as well, asking the Solicitor General to file a brief expressing the views of the United States. The Solicitor General filed its brief on January 3, 2019 stating that Supreme Court review is warranted in the case but asking the Court to hold the petition in Upstate Forever until the Court’s disposition of the Count of Maui petition, which is the course the Supreme Court has now taken. For now, the Supreme Court will hear at least one case on this issue which is not unexpected given the Circuit split between the Fourth, Sixth, and Ninth Circuits.