Attorney General Becerra to Supreme Court: The Clean Water Act Regulates Indirect Discharges of Pollutants into Our Nation’s Waters

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a 14-state coalition, submitted an amicus brief to the U.S. Supreme Court in Hawai’i Wildlife Fund, et al., v. County of Maui. In the brief, the coalition supports the environmental groups’ position that the indirect discharge of wastewater into the Pacific Ocean or any other waters of the United States, through groundwater or another similar conduit, is prohibited by the Clean Water Act.

“Our oceans and waters should be free from pollutants such as sewage and wastewater – and we should have the ability to hold polluters accountable,” said Attorney General Becerra. “The bottom line is that the Clean Water Act’s protections should apply regardless of whether pollutants are discharged directly or indirectly into our nation’s waters.”

The Supreme Court granted review to evaluate whether the County of Maui’s wastewater, which is injected into groundwater that ultimately flows into the Pacific Ocean, should be regulated under the Clean Water Act. The state coalition urges the Supreme Court to uphold the Court of Appeals’ decision, which requires Clean Water Act permits for indirect discharges of pollutants into waters of the United States from a point source through groundwater or any other conduit.

The Attorneys General assert that rejecting the Court of Appeals’ decision would not adequately protect the nation’s waters and may encourage polluters to discharge pollutants into groundwater that is connected to a creek, river, lake, or ocean in order to avoid Clean Water Act requirements. The state coalition also points out that the position advanced by the County of Maui – and supported by several states, numerous other entities, and the U.S. Environmental Protection Agency (EPA) – is inconsistent with the EPA’s longstanding interpretation and application of Clean Water Act requirements.

California maintains a strong interest in upholding the Clean Water Act’s protections, including the regulation of indirect discharges of pollution. Such regulation safeguards California waters from out-of-state pollution. Earlier this year, the Attorney General and a multistate coalition filed a comment letter denouncing the EPA’s 2019 interpretive guidance, which would exclude from Clean Water Act permitting requirements any discharge of pollutants through groundwater into creeks, rivers, lakes, and oceans.

Attorney General Becerra joins the Attorneys General of Maryland, Connecticut, Illinois, Massacusetts, Maine, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia in filing the amicus brief.

A copy of the amicus brief is available here.