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.

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