The Supreme Court should resolve the question of whether the Clean Water Act (CWA) forbids the discharge of pollutants that travel through groundwater to a regulated water body, the U.S. Solicitor General said in a brief filed with the court Friday. The high court had specifically requested the government’s input on a petition filed by Maui County, Hawaii, which lost a case involving effluent discharges from its wastewater wells that ended up in the Pacific Ocean after traveling through groundwater. In February, the Ninth Circuit Court of Appeals in San Francisco found the CWA prohibited those discharges, even though groundwater is not specifically covered under the law. A subsequent opinion in the Fourth Circuit Court of Appeals in Richmond came to a similar conclusion in a case involving discharges from coal ash disposal ponds. But then the Sixth Circuit Court of Appeals issued two opinions that placed the circuit court “squarely in conflict on the proper reading of the CWA’s definition of the term ‘discharge of a pollutant,’” the government said, urging the court to focus solely on the Hawaii case. EPA, shortly after the Maui decision was issued, sought comment on the issue and “expects to take further action … within the next several weeks,” the government said in its brief.
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