October 11, 2018

Circuit Split Widens as Sixth Circuit Weighs In on Groundwater

Thomas L. Casey III and Katlyn Caldwell

The Sixth Circuit has now issued a pair of highly anticipated opinions concerning whether the scope of the Clean Water Act’s (CWA) jurisdiction covers discharges to groundwater hydrologically connected to surface waters that are traditionally regulated under the Act. In Kentucky Waterways Alliance v. Kentucky Utilities Co., No. 18-5115 (6th Cir. Sept. 24, 2018), and Tennessee Clean Water Network v. TVA, No. 17-6155 (6th Cir. Sept. 24, 2018), the Sixth Circuit rejected the hydrologic connection theory, expressly disagreeing with opinions issued earlier this year by the Ninth Circuit and the Fourth Circuit, which found that discharges to hydrologically connected groundwater fall within the scope of the CWA’s jurisdiction. The Ninth Circuit’s opinion in Hawai’i Wildlife Fund v. Cnty. of Maui, 881 F.3d 754 (9th Cir. 2018), and the Fourth Circuit’s opinion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), are both the subject of petitions for certiorari before the US Supreme Court. In declining to extend the Clean Water Act’s reach to include discharges to groundwater, the Sixth Circuit’s recent opinions increase the likelihood that the Supreme Court will agree to consider the connectivity issue.

In both Kentucky Utilities and TVA, plaintiffs brought citizen suits alleging that coal ash ponds at power plants had discharged pollutants into groundwater that subsequently traveled via groundwater to nearby surface waters in violation of the CWA. Both cases raised the question of what sort of connection there must be between the source of the pollution and the surface waters that were allegedly polluted for the CWA to apply. First, the Sixth Circuit rejected the plaintiffs “point source theory,” finding that the CWA’s text does not support the argument that groundwater or the medium through which it flows (e.g., karts geology) can be a point source subject to CWA permitting. Kentucky Utilities, slip op. at 10–11. The court explained that “[w]hile groundwater may indeed be a ‘conveyance’ in that it carries pollutants . . . it is not ‘discernible,’ ‘confined,’ or ‘discrete.’” Id. at 10.

The Sixth Circuit then rejected the hydrologic connection theory adopted by the Ninth and Fourth Circuits earlier this year. Relying on the text of the CWA, the court explained that the Act requires that pollutants be discharged “into” navigable waters and that that the word “into” means there must be a “point of entry” not a “‘diffuse medium’ that seeps in all directions.” Id. at 10–12. The court concluded that “when pollutants are discharged to [navigable waters], they are not coming from a point source; they are coming from groundwater, which is a nonpoint-source conveyance [and] [t]he CWA has no say over that conduct.” Id. at 12. The Sixth Circuit in TVA applied the reasoning in Kentucky Utilities to reach the same conclusion regarding both the point source and hydrologic connection theories.

This issue may be ripe for Supreme Court review. Both the Ninth Circuit and Fourth Circuit were already at odds with older precedent in the Second, Fifth, and Seventh Circuits, which read the CWA’s jurisdiction as strictly limited to discharges to navigable surface waters. See United States v. Plaza Health Labs., 3 F.3d 643, 646 (2d Cir. 1993) (holding that point sources are “physical structures and instrumentalities that systematically act as a means of conveying pollutants from an industrial source to navigable waterways”); Rice v. Harken Expl. Co., 250 F.3d 264, 271 (5th Cir. 2001) (holding that any effort to construe the CWA to cover pollutants that reach navigable waters by “gradual, natural seepage” through groundwater would be an “unwarranted expansion of the [statute]”); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) (refusing to extend CWA liability to cover pollutants seeping into “local ground waters” that may be hydrologically connected with surface waters). These courts—like the Sixth Circuit—read the text and legislative history of the Act as evidencing a conscious political choice to restrict the reach of the Act to navigable surface waters in deference to the states’ power to regulate groundwater pollution.

A separate issue raised in the Sixth Circuit cases and the Fourth Circuit’s recent opinion in Sierra Club v. Virginia Elec. & Power Co. (VEPCO), No. 17-1895 (4th Cir. Sept. 12, 2018), is whether there are some grounds for distinguishing between the kind of fact pattern at issue in the VEPCO and Sixth Circuit cases with the facts at issue in County of Maui and Upstate Forever. While the VEPCO and Sixth Circuit cases all involved passive, diffuse groundwater pollution, the latter two cases involve discharges from what might be considered more conventional, “active” point sources. For example, in County of Maui, the Ninth Circuit held that the county had violated the CWA by allowing pollutants from four wastewater injection wells to eventually seep into the Pacific Ocean, even though the wells did not directly discharge the pollutants into the ocean. While in Upstate Forever, the Fourth Circuit found that a gasoline spill from an underground pipeline was a point source because it was the starting point or the cause of the discharge, despite the fact that it did not actually convey the discharge directly into the nearby navigable water. Judge Clay’s dissents in Kentucky Utilities and TVA disagreed with this limitation. See No. 18-5115, slip op. at 21 (Clay, J., dissenting); No. 17-6155, slip op. at 20–21 (Clay, J., dissenting).

Regardless of whether the Supreme Court takes up these questions this term, the opinions by the Fourth, Sixth, and Ninth Circuits this year raise important questions for a wide range of industrial, commercial, and municipal operations, among others, as well as state regulatory agencies. Arguably thousands of discharges to groundwater currently not covered by the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting program could be required to obtain NPDES permits if the logic of County of Maui and Upstate Forever is expanded or adopted nationwide. 

Thomas L. Casey III and Katlyn Caldwell

Published: October 11, 2018

Thomas L. Casey III is a partner in Balch & Bingham LLP’s Environmental & Natural Resources Section in Birmingham, Alabama. 

Katlyn Caldwell
is an associate in the firm’s Environmental & Natural Resources Section in Birmingham, Alabama.