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Jillian C. Kirn, Greenberg Traurig

In two recent decisions, Hawai’i Wildlife Fund v. County of Maui and EQT Production v. Department of Environmental Protection, courts have considered the nuances of “water-to-water theory” and what constitutes a single discharge. While these cases may seem particularly distinct, one decided in the U.S. Court of Appeals for the Ninth Circuit regarding discharges into the Pacific Ocean under the Clean Water Act and one decided before the Pennsylvania Supreme Court under the Clean Streams Law, both cases add new color to a long and unresolved discourse regarding what constitutes a single release, how penalties are calculated, and what actions or inactions may escalate such a calculation. In the wake of Maui County and EQT, we can expect further debates regarding interpretation and application of both state and federal water law.

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