chevron-down Created with Sketch Beta.
December 04, 2018 Articles

So, You Live under a Rock? Does the Clean Water Act Apply to Your Water Down There?

The circuits are split on whether the reach of the CWA extends to groundwater.

By Karen Aldridge Crawford

Unless you live under a rock, you have likely heard the news and political debates over Clean Water Act (CWA) jurisdiction. You have likely heard about the Obama administration’s attempt to redefine “navigable waters” in a rule that greatly extended the reach of CWA jurisdiction—known as the WOTUS rule—and that has been the subject of much litigation. Under the Trump administration, the U.S. Environmental Protection Agency (EPA) is repealing that rule.

More recently, however, the U.S. Supreme Court was asked to determine a different question involving a different water resource: whether the CWA provides authority for regulation of discharges to groundwater.

Circuit Split

Recent cases have led to a split of opinion among the circuit courts on this and related questions concerning whether discharge of a pollutant to groundwater may give rise to CWA jurisdiction and provide a basis for asserting that the discharger has violated the CWA if no permit was obtained approving such discharge.

The CWA authorizes the EPA (or a state agency with delegated authority) to enforce the permit requirements and also provides for citizen suits. Environmental groups have recently used the CWA’s citizen suit provisions in several cases that pose the question: Does the discharge to groundwater directly give rise to CWA jurisdiction? Finding that jurisdiction of the CWA extends to discharges to groundwater means that the court would have to determine that discharge to groundwater constitutes a discharge to “navigable water.” A related question also arises in such cases: If the discharge to groundwater does not itself directly give rise to applicability of CWA requirements, then does such discharge of pollutants to groundwater that then migrate with and through groundwater and ultimately discharge with that groundwater to a navigable water give rise to CWA jurisdiction?

Just this year, a decision in the U.S. Court of Appeals for the Ninth Circuit, two decisions in the U.S. Court of Appeals for the Fourth Circuit, and a similar determination in two different decisions in the U.S. Court of Appeals for the Sixth Circuit have highlighted several differing CWA interpretations and squarely shown a difference among the circuit courts on the question of just how far the jurisdiction of the CWA reaches. Importantly, the questions raised in the cases underlying these circuit court decisions involve both indirect and discrete discharges to groundwater, bringing both of the above-described questions to the forefront.

Ninth Circuit

Section 402 of the CWA requires that any discharger obtain a National Pollution Discharge Elimination System (NPDES) permit prior to discharging “pollutants” from a “point source” into “navigable waters.” Congress defined each of those terms in the act. The definition of navigable waters, defined as “waters of the United States” (WOTUS), has been the subject of much litigation over many years as regulators and environmental protection groups attempted to extend the reach of the law and related rules to protect waters adjacent to, near, or in any way related or arguably connected to waters of the United States.

NPDES permits and the designation of WOTUS were the focus of Hawaii Wildlife Fund v. County of Maui. No. 15-17447 (9th Cir. 2018). In Hawaii, the county of Maui used groundwater injection wells for disposal of treated sewage effluent. Studies showed that once injected into the groundwater, some of the effluent ultimately reached the Pacific Ocean. After the Hawaii Wildlife Fund sued the county for violation of the CWA, the trial court agreed that disposal, even indirectly, to the ocean without an NPDES permit violated the CWA; the court also held that the groundwater qualified as WOTUS.

In February 2018, the Ninth Circuit upheld the decision of the lower court, finding that the well was a “point source”; the effluent was a “pollutant”; and, even though the discussion treated groundwater as the conveyance mechanism (not the WOTUS or navigable water) for the effluent to reach the Pacific Ocean (the navigable water), the discharge of a pollutant that indirectly resulted in discharge to WOTUS at more than a de minimis level was subject to the CWA and required a permit under section 402. Hawaii Wildlife Fund,No. 15-17447. The court found that (1) the county discharged pollutants from a point source (its underground injection wells), (2) the pollutants were fairly traceable from the point source to a navigable water (based on evidence from dye tests showing that the dye ended up in the Pacific Ocean), and (3) the pollutant levels reaching the navigable water were more than de minimis.

Fourth Circuit

In April 2018, a Fourth Circuit case involving a gasoline spill from a Kinder Morgan pipeline in Virginia found in favor of plaintiff Upstate Forever, citing the Hawaii Wildlife case’s decision based on indirect but fairly traceable discharge. Upstate Forever v. Kinder Morgan Energy Partners LP, No. 17-1640 (4th Cir. 2018). The court held that the past spill could constitute a violation of the CWA if plaintiffs plausibly alleged that there is a “direct hydrological connection” between the pollutant’s path through groundwater and the navigable waters covered by the CWA and if the pollutant was continuing to be discharged into navigable water even though the pipeline had been repaired.

The well-reasoned dissent in this case is worth reading as it raises the specific issue of whether an “on-going violation” is required for bringing a citizen suit under the CWA because in this case the pipeline was no longer leaking. The dissent also cited prior cases finding that redress for such wholly past discharges was available under the Resource Conservation and Recovery Act (RCRA). Much of the discussion in the majority opinion is directly in response to points raised in the dissent.

But only a few months later, in September 2018, the Fourth Circuit limited the reach of the CWA (arguably extended by its earlier decision), deciding that Dominion Energy Inc.’s coal ash settling ponds are not considered a “point source” of pollution under the CWA because the seepage from a coal ash pond does not convey a measurable amount of a pollutant into navigable waters. Sierra Club v. Va. Elec. & Power Co., No. 17-1952 (4th Cir. 2018). The court observed that the ponds were covered by the RCRA; thus, no regulatory gap was created by not including discharges from these ponds to groundwater within the jurisdiction of the CWA.

Some have argued that because this decision dealt with an inactive pond, the decision did not address what would happen in the case of an active pond where discharge to the pond through an outfall was still occurring.

Sixth Circuit

However, the Sixth Circuit, in related cases also decided in September 2018, held that the CWA discharge permit requirements do not apply to the leaching of pollutants from coal ash ponds into groundwater even where that groundwater was hydrologically connected to surface water, rejecting the “direct hydrological connection” theory embraced by the Fourth Circuit in the Kinder Morgan case. Ky. Waterways Alliance v. Ky. Utils. Co., No. 18-5115 (6th Cir. 2018); Tenn. Clean Water Network v. Tenn. Valley Auth., No. 17-6155 (6th Cir. 2018).

Two different environmental groups argued in separate cases, one case involving the Kentucky Utilities Company and the other involving the Tennessee Valley Authority (TVA), that pollutants that leaked into groundwater from ash ponds and then flowed in groundwater to navigable waters were subject to CWA NPDES permit requirements, arguing that groundwater was a “point source.” The Sixth Circuit disagreed with the Ninth and Fourth Circuits, holding that the “CWA does not extend liability to pollution that reaches surface waters via groundwater” and that “groundwater is not a point source” because it is not a “discernible, confined or discrete conveyance” as defined by the CWA.

Interestingly, it appears from the discussions in these cases that the Kentucky Utilities Company ash ponds were in operation at the time of the suits, and the TVA facility had both closed and operational coal ash management facilities. The operational status did not seem relevant to the Sixth Circuit’s findings because the court, pointing to express language in the CWA in both cases, found that the terms into navigable waters and to navigable waters from any point source indicated directness even though the term direct was not used.

One Sixth Circuit justice penned a dissent agreeing with the Fourth and Ninth Circuit decisions.

Conclusion

A split among the circuits increases the likelihood that the Supreme Court will take up the issue of whether the CWA reach extends to discharges of pollutants to navigable water via groundwater. Petitions for certiorari have been filed. Also, the EPA has requested and received comment on whether the CWA should apply to discharges from point sources that reach navigable waters via groundwater, raising the possibility that this will be clarified by rule.

Karen Aldridge Crawford is partner at Nelson Mullins in Columbia, South Carolina.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).