Clean Water Act

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court will decide whether groundwater is subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA). The State and Local Legal Center (SLLC) filed an ...

If a state or local government discharges a pollutant from a point source to a navigable water it must obtain a permit under the Clean Water Act (CWA). But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water? Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund.

In National Association of Manufacturers v. Department of Defense the Supreme Court held unanimously that a legal challenge to the definition of “waters of the United States” (WOTUS) must begin in a federal district court not a federal court of appeals. What this ruling means for the 2015 WOTUS definitional rule is unclear.  

As Justice Sotomayor stated at the beginning of the Court’s opinion, defining “[WOTUS]—a central component of the Clean Water Act—is a contentious and difficult task.” In 2015 the Obama administration issued a new WOTUS definitional rule which it intended to provide  “simpler, clearer, and more consistent approaches for identifying” the scope of the Act.

The Trump administration asked the Supreme Court to hold “in abeyance” litigation over whether a federal district court or a federal court of appeals has jurisdiction to rule whether the current 2015 Waters of the United States (WOTUS) definitional rule violates the Clean Water Act. On April 2 the Supreme Court denied the motion meaning the litigation will proceed.

President Trump’s February 28 executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule calls for the “rescinding or revising” of the WOTUS rule. Many state and local governments objected to the broad nature of this rule, in particular to the expansive definition of ditches and the ambiguous definition of tributaries. 

The Supreme Court has agreed to decide whether federal courts of appeals versus federal district courts (lower courts) have the authority to rule whether the “waters of the United States” (WOTUS) regulations are lawful.

Numerous states and local governments have challenged the WOTUS regulations. In National Association of Manufacturers v. Department of Defense the Supreme Court will not rule whether the regulations are lawful. Instead, they will simply decide which court gets to take the first crack at deciding whether they are lawful.

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