Expanding Scope of Clean Water Act Jurisdiction and Liability: Impact of Recent Circuit Court Opinions

Two recent federal Circuit Court opinions indicate expansion of the scope of CWA jurisdiction under the CWA and the National Pollution Discharge Elimination System (NPDES) permit program. In Upstate Forever v. Kinder Morgan Energy Partners (4th Cir. Apr. 12, 2018), and in Hawai’i Wildlife Fund v. County of Maui (9th Cir. Feb. 1, 2018), the Fourth Circuit and Ninth Circuit, respectively, held unpermitted discharges indirectly introduced into navigable waters via groundwater may result in CWA liability.

Together, these cases constitute a significant expansion of CWA jurisdiction and potential liability. Companies now may need to obtain a CWA permit under the NPDES program for discharges to groundwater that result in indirect discharges to jurisdictional waters or face potential CWA liability.

Listen as our authoritative panel reviews CWA jurisdiction and where the line for liability has been historically. The panel will examine the two recent Circuit Court opinions and discuss the potential differences in the standards articulated by the two courts and how they change the CWA landscape. The panel will also offer insight into what companies will need to do going forward to minimize the risk of liability.

1. The changing CWA landscape
   1. Upstate Forever v. Kinder Morgan Energy Partners (4th Cir. Apr. 12, 2018)
   2. Hawai’i Wildlife Fund v. County of Maui (9th Cir. Feb. 1, 2018)
   3. Potential differences in the standards articulated by the two courts
   4. EPA
2. Minimizing risk of liability going forward

The panel will review these and other high priority issues:

• How do the Fourth Circuit and Ninth Circuit decisions change the CWA landscape?
• What interplay is there between the rollback of the Waters of the U.S. Rule and the recent court decisions?
• What steps should companies take in light of Upstate Forever and Hawaii Wildlife Fund?