November 15, 2018

CWA Jurisdiction Over Groundwater

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CWA Jurisdiction Over Groundwater


Decisions/court documents

     Jurisdiction Over Groundwater


EPA Considers Revising Policy Requiring CWA Permits for Discharges via Groundwater. In the wake of Hawai’i Wildlife Fund ruling, EPA is considering revising its policy of requiring permits for pollution of water bodies via groundwater. On February 12, 2018, EPA published a request for comment on the question of “whether subjecting [groundwater] releases to permitting is consistent with the text, structure, and purposes” of the CWA.



Fourth Circuit Rules That Discharges via Groundwater Are Subject to the CWA. On April 12, 2018, the Fourth Circuit ruled in Upstate Forever v. Kinder Morgan Energy Partners, No. 17-1640 (4th Cir.), that discharges to hydrologically-connected groundwater can give rise to liability under the CWA. This decision comes two months after the Ninth Circuit reached a similar conclusion in Hawaii Wildlife Fund v. County of Maui





In 2015, in Sierra Club v. Virginia Electric and Power Co., No. 15-cv-112 (E.D. Va.), plaintiff filed suit under the CWA, arguing that the defendant had violated the act by allowing arsenic from coal ash piles and lagoons at a now closed coal plant to seep into groundwater that was hydrologically connected to surface waters.  On March 23, 2017, after trial, the Court agreed, finding that Dominion’s coal ash piles and lagoons are discrete mechanisms conveying pollutants from its plant to surface waters.  The Court declined to impose a civil penalty or the removal of the coal ash, however, instead ordering Dominion to conduct monitoring and requesting additional input from the parties on the nature and scope of the required monitoring.

  Sierra Club v. Ea. Elect. & Power Co., 2015 BL 367333, E.D. Va., No. 15-cv-00112 (11/6/15).

  Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, No. 1:14-CV-753, 2015 WL 6157706 (M.D.N.C. Oct. 20, 2015).


Hawai‘i Wildlife Fund v. Cty. of Maui opinions:


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