March 27, 2019

CWA Jurisdiction Over Groundwater

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CWA Jurisdiction Over Groundwater

  • February 19, 2019- Supreme Court to Determine Whether CWA Jurisdiction Includes Groundwater Discharges. The Supreme Court granted certiorari in County of Maui v. Hawai’i Wildlife Fund (Supreme Court Case No. 18-260) to resolve a circuit split and answer “whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” The Supreme Court granted cert after taking the unusual step of inviting the U.S. Government to weigh in on the issue and whether cert should be granted.

    Although County of Maui is the only case going before the Court at this time, the issue been the subject of three decisions issued by circuit courts within the past year:    

    Hawai’i Wildlife Fund v. County of Maui
    , 886 F.3d 737 (9th Cir. Feb. 1. 2018). Plaintiffs-Appellees filed suit arguing that the County of Maui violated the CWA by discharging pollutants from its wells at a wastewater reclamation facility into the Pacific Ocean. The court affirmed the district court, ruling that the wells were point sources because the treated effluent at issue was discharged into groundwater, through which the pollutants entered a “navigable water” – the ocean.

    Upstate Forever v. Kinder Morgan Energy Partners
    , 887 F.3d 637 (4th Cir. Apr. 12, 2018). The circuit court reversed, in a 2-1 decision, a lover court’s dismissal of a citizen suit for lack of standing. The majority held that the CWA prohibits the discharge of pollutants from a point source through groundwater that has a direct hydrological connection to navigable waters of the United States. Kinder Morgan has filed a cert petition that has not yet been ruled upon. 

    Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. TVA, 905 F.3d 436 (6th Cir. Sept. 24, 2018). In companion cases, the Sixth Circuit rejected the hydrologic connection and point source theories upon which the Ninth and Fourth Circuits relied, holding that groundwater discharges are not subject to the CWA.

    Further clouding the issue of CWA jurisdiction over groundwater is internal tension (if not an outright split) within the Fourth Circuit caused by a panel’s ruling in Sierra Club v. Virginia Electric & Power Co., 903 F.3d 403 (4th Cir. Sept. 12, 2018), in which the court held that coal ash settling ponds were not a point source within the meaning of the CWA, and that a point source requires a “discrete conveyance”. 

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.
Discussion
Opinion

 
  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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