In Supreme Court Brief
Maryland Attorney General Brian E. Frosh today led a coalition of 14 attorneys general in filing an amicus brief in County of Maui v. Hawaii Wildlife Fund, in which the Supreme Court will decide whether the federal Clean Water Act regulates discharges of pollutants that travel through groundwater before reaching navigable waters. In the brief, the attorneys general argue that the Clean Water Act contains no exception for such discharges. Instead, the attorneys general argue, the Act regulates these discharges as long as they are fairly traceable from a polluting “point source” to navigable waters.
“Creating an exception for pollution that travels through groundwater before reaching navigable waters would give polluters a road map to get around the Clean Water Act,” said Attorney General Frosh. “Such an exception would jeopardize the health of rivers, streams, and lakes in Maryland and around the country.”
The Clean Water Act bars “any addition of any pollutant to navigable waters from any point source” unless authorized by a permit and in compliance with the Act’s requirements. As the attorneys general argue in today’s brief, the Act contains no exception for discharges of pollutants that pass through groundwater before they reach navigable waters. Indeed, until recently, EPA itself rejected the existence of such an exception.
The brief argues that other federal and state laws would not adequately fill the gap resulting from an exception for discharges via a groundwater conduit. It also refutes arguments that Clean Water Act coverage of such discharges is unduly burdensome for permitting agencies and regulated parties.
The case is scheduled for oral argument in November 2019, and a decision is expected by the end of June 2020.
Joining Maryland in the brief were the attorneys general of California, Connecticut, the District of Columbia, Illinois, Maine, Massachusetts, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.