Michael Best & Friedrich LLP
Scott C. Beightol, John A. Sheehan, Leah Hurtgen Ziemba and Samuel M. Mitchell
November 8, 2019
The U.S. Supreme Court appeared divided following recent oral arguments on Wednesday, November 6, 2019 in a closely followed environmental case which will have major implications on the scope federal regulatory power under the Clean Water Act (CWA).
In County of Maui, Hawaii v. Hawaii Wildlife Fund, the justices are considering 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 outcome of Maui will have a significant impact on a wide-array of industries and private individuals by either subjecting millions of pollutant sources to the CWA’s permitting requirements for the first time or enshrining what environmentalists consider a loophole in the CWA. Although several justices seem to reject the county’s argument that the federal government should only regulate pollution direct from a point source, the justices appear divided as to the limits of such regulation.