August 27, 2019

The Jurisdiction of the Clean Water Act Includes Some Discharges into Groundwater

Heather Foxx

Introduction

Since the enactment of the Clean Water Act (CWA), litigation over the statute’s jurisdictional reach has created a complicated legal landscape. Currently, the federal circuit courts are split when it comes to groundwater’s role in the CWA and National Pollutant Discharge Elimination System (NPDES) program. The U.S. Supreme Court of the United States (Supreme Court) granted certiorari to resolve the circuit split after the Ninth Circuit’s controversial decision that opposed the Fifth, Sixth, and Seventh Circuits. The following is an analysis about how the Supreme Court should interpret groundwater’s role in the CWA. First, the CWA and NPDES program are reviewed. Second, the case up for Supreme Court review is examined. Third, additional arguments from the federal circuit split are considered. Lastly, my analysis predicts the Supreme Court’s outcome.

I. The Clean Water Act and the NPDES Program

Congress passed the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To achieve this goal, the CWA prohibits the “discharge of any pollutant by any person.” The CWA defines discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.” The CWA construed pollutant broadly to include several types of pollutants including municipal waste. Under the CWA, navigable waters are defined as “the waters of the United States, including the territorial seas.” Point source was also defined broadly to include “any discernible, confined, and discrete conveyance” that includes wells.

For persons to be exempt from CWA liability, they must obtain and follow their NPDES permit. An NPDES permit allows for persons to discharge pollutants but with discharge limits in place to prevent water quality deterioration. An NPDES permit will also require monitoring and reporting. Persons without a permit who “(1) discharge (2) a pollutant (3) to navigable waters (4) from a point source” are in violation of the CWA.           

II. Procedural History of Hawai’i Wildlife Fund v. County of Maui

In Haw. Wildlife Fund v. Cnty. of Maui, environmental organizations sued Maui County for violating the CWA by failing to obtain an NPDES permit for their four wastewater injection wells. The district court ruled in favor of the environmental organizations holding that Maui County violated the CWA by not getting an NPDES permit. The district court used a “significant nexus” test and a “conduit theory” to evaluate the discharge of pollutants. Maui County appealed the district court’s decision. The Ninth Circuit affirmed the district court but under different reasoning.

The Lahaina Wastewater Reclamation Facility (LWRF) filters and disinfects approximately four million gallons of sewage per day for the 40,000 residents of West Maui, Hawaii. For disposal, the treated wastewater is injected into four onsite wells. The wastewater effluent migrates around 200 feet underground into an underground aquifer. Federal agencies, the state government, and a public university conducted a dye tracer study (Study) to evaluate potential hydrological connections between wastewater effluent injected into wells and ocean water near the coast. Eighty-four days after injection, tracer dye emerged “about a half-mile southwest of the LWRF” along the coast. Based on the dye’s presence, researchers confirmed “a hydrogeological connection” between the LWRF injection wells and the nearby coastal waters estimating that 64 percent of the wastewater effluent discharged into the coastal waters.

A.    Decision of the U.S. District Court for the District of Hawaii
The district court held that Maui County violated the CWA by not having an NPDES permit. The court used a two-part significant nexus test first requiring the showing of a hydrological connection and second requiring a showing that “there are significant physical, chemical, and biological impacts as a result of the connection to warrant issuances of an NPDES permit.” For the first requirement, the court determined that the discharge of wastewater effluent into the injection wells had a “direct and immediate hydrologic connection with the ocean.” The court added that the Study “demonstrate[d] the relatively rapid flow of significant quantities of pollutant from the LWRF to the ocean.” For the second part, the court determined that the water discharging into the ocean altered the ocean water’s properties potentially damaging coral and warranting an NPDES permit.

The court also recognized the conduit theory. To prevail, the party must show that “the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.” The court relied heavily on the Study, which showed that 50 percent of the wastewater effluent injected into the wells migrated to the ocean via groundwater. The court granted summary judgement in favor of the environmental groups and found Maui County liable under both tests. Maui County appealed the decision.

B.  Decision of the U.S. Court of Appeals for the Ninth Circuit
The Ninth Circuit affirmed the district court’s ruling of summary judgment because Maui County discharged a pollutant to navigable water from a point source. The court specified that the discharge of a pollutant included “treated effluent [released] into groundwater,” and the Pacific Ocean was the affected navigable water. The court held that Maui County “discharged pollutants from a point source.” The court reasoned that the four injection wells constituted a point source because the wells were “discernible, confined, and discrete conveyances from which pollutants are discharged” as defined in the CWA. In addition, the statute considered a well to be a point source. The court considered treated effluent released into groundwater to be a point source rather than a nonpoint source because nonpoint source pollution was untraceable to any single discrete source and dispersed over large areas.

Next, the court held that “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” Unlike the district court, the Ninth Circuit requires the pollutants from the point source entering navigable waters to be fairly traceable. The Study strongly supports a fairly traceable connection between the injection wells and entering the Pacific Ocean because the wastewater effluent traveled southwest to emerge into the ocean a half-mile from the facility.  The Ninth Circuit reasoned that the CWA does not require a direct discharge into navigable waters from a point source.

Finally, the court held that “the pollutant levels reaching navigable waters are more than de minimis.” The Study established that 64 percent of the wastewater effluent injected into the four wells reached the ocean which was sufficient for the court. The court did not elaborate on what quantities would be insufficient.

III. Analysis of the Federal Circuit Split and the Recent Environmental Protection Agency (EPA) Interpretation

The Circuit Courts are split on whether CWA liability should attach to discharges of pollutants that reach jurisdictional waters via groundwater. The Fourth and Ninth Circuits agree that discharges into groundwater can violate the CWA. The Fifth, Sixth, and Seventh Circuits disagree and hold that discharges into groundwater do not violate the CWA. In April 2019, the EPA published an interpretive statement determining that discharges into groundwater never violate the CWA.

A.    Federal Circuit Court Split
In Upstate Forever v. Kinder Morgan Energy Partners, the Fourth Circuit held that indirect discharges to navigable waters constitute CWA violations when groundwater provides a “direct hydrological connection” from the discharge to the navigable waters. In this case, thousands of gallons of gasoline leaked from an underground pipeline into groundwater. A suit was filed alleging that gasoline contamination was migrating from the groundwater into navigable waters. The connection between the discharged pollutant and navigable water must be clear using fact-specific factors that include geology, distance, time, flow, and slope.

In Rice v. Harken Exploration Co., the Fifth Circuit considered the discharge of pollutants migrating to navigable waters via groundwater. Landowners sought damages against oil and gas lessees under the Oil Pollution Act (OPA). Landowners argued that multiple small hydrocarbon discharges from the oil and gas lessees damaged their land over time. The court analogized navigable waters in the OPA as consistent with navigable waters in the CWA. The court determined that groundwater should not be construed as “navigable waters,” and Congress had no intention of regulating groundwater. Furthermore, the court interpreted the CWA’s intent to leave groundwater regulation to the states. The court held that landowners did not provide evidence of a “close, direct and proximate link” between oil discharges and “identifiable oil contamination” in jurisdictional waters.

In Ky. Waterways Alliance v. Ky. Util. Co., the Sixth Circuit held that CWA liability does not extend to surface water pollution flowing from groundwater. Environmental groups argued that pollution from coal ash ponds was seeping into the groundwater and contaminating a nearby lake. The court rejected the idea that groundwater and groundwater traveling through karst terrain acted as point sources discharging pollutants to navigable waters. The court concluded that groundwater is “neither confined nor discrete” and instead should be considered “a ‘diffuse medium’ that seeps in all directions.” The court also rejected the “hydrological connection theory.” Because the court does not consider groundwater to be a point source, they reasoned that pollutants were not reaching navigable waters from any point source. Thus, the CWA would not be applicable, and regulation of groundwater pollution should be left to the states.

In Village of Oconomowoc Lake v. Dayton Hudson Corp., the Seventh Circuit held that the CWA did not apply to groundwater impacted by artificial pond drainage. The case concerns CWA applicability for an artificial retention pond built by a warehouse company. The municipality argued that rainwater runoff containing pollutants would flow into the retention pond and seep into the groundwater feeding waters of the United States. The court reasoned that waters of the United States did not include all water, and the omission of groundwater from the statute was intentional, thus determining that groundwater should be completely excluded from waters of the United States. The court found that congressional intent was to leave regulation to the States because groundwater jurisdiction was too complex.

B.     Recent EPA Interpretations
The EPA specifically addressed the issue of groundwater as a migration or conveyance pathway for pollutants to jurisdictional waters. EPA concluded that all releases to groundwater are excluded from the CWA’s NPDES program, “regardless of hydrologic connection between the groundwater and a jurisdictional surface water.” EPA based its conclusion on the CWA’s “text, structure, and legislative history” finding that Congress “intentionally chose to exclude all releases of pollutants to groundwater from the NPDES program.” EPA determined that the CWA’s structure leaves regulating responsibility to the states. Additionally, Congress provided explicit federal authority to regulate groundwater pollution in the Safe Drinking Water Act (SDWA), the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

IV. Considerations for the Supreme Court Interpretation

Maui County petitioned the Supreme Court for certiorari to determine whether the CWA applies to the point source discharge of pollutants migrating to navigable waters through groundwater. The Supreme Court granted cert in early 2019. The Maui County Council is considering withdrawing their appeal due to fears that a ruling in favor of Maui County may harm CWA authority. Notwithstanding the council’s potential withdrawal, the Supreme Court should find that CWA jurisdiction extends to some discharges into groundwater for three reasons. First, the CWA definitions are broad enough to include the regulation of some discharges to groundwater. Second, Haw. Wildlife Fund v. Cnty. of Maui supports CWA liability for pollutant discharges into groundwater. Third, CWA interpretations by the Ninth and Fourth Circuits more closely align with the CWA’s purpose compared to the EPA and the Fifth, Sixth, and Seventh Circuits.

A.    The CWA’s Broad Definitions Support Regulation of Some Discharges to Groundwater
The CWA prohibits “any addition of any pollutant to navigable waters from any point source.” The definitions are broadly defined to allow for the regulation of multiple forms of discharge of any pollutant.

The EPA and the Fifth, Sixth, and Seventh Circuits argue that the absence of the word “groundwater” from the NPDES section of the CWA justifies non-regulation. While groundwater is not included under the definition of “navigable waters,” the definition of “point source” includes wells as a “discernible, confined and discrete conveyance … from which pollutants are or may be discharged.” The U.S. Geological Survey defines well as “an artificial excavation put down by any method for the purpose of withdrawing water from the underground aquifers.” The main purpose of a well “is to reach underground water supplies or oil.” The explicit inclusion of well as a point source warrants regulation of some groundwater.

B.     Hawai'i Wildlife Fund v. County of Maui Supports CWA Liability for Pollutant Discharges into Groundwater
Groundwater does not always act as a conveyance pathway for pollution. These determinations are fact sensitive. Evidence to support the connection include the distance of the pollutant to the navigable water and the quantity of pollutants reaching the navigable water. A dye tracer study can show if pollutants are reaching a navigable water, how long pollutants take to reach navigable waters, and the quantity of pollutants reaching navigable water.

In Haw. Wildlife Fund v. Cnty. of Maui, substantial evidence supported the conclusion of a CWA violation because there was a discharge of a pollutant to navigable waters from a point source. Wastewater effluent discharging from injection wells into the Pacific Ocean constitutes a discharge of pollutants to navigable waters. Evidence supports the conclusion that injection wells are a point source because the pollution discharging into the Pacific Ocean was traceable and quantifiable. Tracer dye injected into the wells discharged into the Pacific Ocean after 84 days. Researchers estimated that 64 percent of the wastewater effluent reached the coast of the Pacific Ocean. On the other hand, the Fifth, Sixth, and Seventh Circuit cases did not provide any traceable or quantifiable evidence to show that pollution was discharging from a point source into a navigable water.

C.    The CWA Interpretations by the Ninth and Fourth Circuits More Closely Align with the Intent of the Clean Water Act
The CWA’s purpose is to protect “the integrity of the Nation’s waters.” The Fourth and Ninth Circuit Courts analyzed the connection between the point source discharges and navigable water. The Fourth Circuit looked at the direct hydrological connection of the pollutants and the navigable waters. The gasoline pooled, produced odors, and killed plants in the vicinity of the pipeline. Gasoline leaking from pipelines migrated through the groundwater into nearby tributaries and creeks. The Ninth Circuit first determined whether pollutants were being discharged from a point source. The wastewater effluent was discharged into injection wells, and the definition of point source includes wells. Next, the court analyzed the traceability and quantity of pollutants reaching the navigable water. The Study indicated that 64 percent of the dye injected into the wells reached the Pacific Ocean after 84 days. The discharge into groundwater is a functional equivalent to the direct discharge into the Pacific Ocean.

The Fifth, Sixth, and Seventh Circuit Courts and the current EPA administration argue that regulation of pollution to groundwater should be left to the states. The Seventh Circuit argued that Congress left regulation to the States because groundwater jurisdiction was too complex for the CWA. The Sixth Circuit argued that groundwater was never a point source, so the CWA was not applicable. Therefore, all pollution entering groundwater should be regulated by the states. The EPA argues that all releases to groundwater are excluded from CWA liability.

However, the Fifth, Sixth, and Seventh Circuits never considered whether groundwater was a conveyance pathway for pollutants to a navigable water. The Fifth and Seventh Circuits analyzed whether groundwater was considered a water of the United States and the Sixth Circuit analyzed whether groundwater was a point source. None of the cases presented evidence that showed a traceable and quantifiable connection between the discharge of pollution from a point source and the navigable waters. Groundwater is not confined to state boundaries. The failure to regulate some groundwater pollution at the federal level allows persons to intentionally pollute without consequences which goes against the CWA’s purpose.

Conclusion

The Supreme Court should find that CWA jurisdiction includes some discharges into groundwater. The CWA definitions are broad enough to include jurisdiction over some discharges into groundwater. The Hawai'i Wildlife Fund v. Cty. of Maui facts support liability under the CWA. The CWA interpretations of the Ninth and Fourth Circuits more closely align with the CWA’s purpose.

    Heather Foxx

    Heather Foxx is a third-year law student at Indiana University Robert H. McKinney School of Law focusing primarily on environmental and natural resources law.

     

    This article was the second-place winner of the 2019 ABA Water Resources Law Student Writing Competition.