Does the Clean Water Act Cover Discharges to or Through Groundwater, Part III?

Posted on March 7, 2019 by David Buente

In both 2016 and 2017, I blogged to discuss a key Clean Water Act (“CWA”) jurisdictional issue:  whether the indirect discharge of pollutants into groundwater which is hydrologically connected to a surface water of the United States is regulated under the CWA.  At the time, the district courts were split on this issue, and the only courts of appeals to rule on this point (a Fifth Circuit opinion from 2001 and a Seventh Circuit opinion from 1994) got the issue right by rejecting CWA or Oil Pollution Act jurisdiction over such discharges.  Since then, the landscape has shifted dramatically.  In 2018 alone, three circuit courts weighed in on this topic in five decisions.  And, as noted on this blog last month, the Supreme Court recently granted a petition for certiorari in one of these cases, meaning that years of confusion will finally be resolved, in some fashion, by 2020. 

The first circuit court to issue an opinion in 2018 was the Ninth Circuit in February 2018, in Hawai’i Wildlife Fund v. County of Maui (the opinion was amended in March 2018).  That case addressed whether treated wastewater effluent which traveled from the County’s underground injection wells, through groundwater, into the nearby Pacific Ocean constituted discharges regulated under the CWA.  The Ninth Circuit held that the wastewater was a covered discharge since it came from a point source (the wells) and was “fairly traceable from the point source,” even if it did not make its way directly from the wells to the ocean. 

The next circuit to weigh in was the Fourth Circuit, in April 2018 in Upstate Forever v. Kinder Morgan Energy Partners, L.P.  This decision held that the movement of gasoline which resulted from a pipeline spill in 2014 and was allegedly still seeping through groundwater approximately 1000 feet into surface waters constituted a CWA discharge, since it originated from a point source (the pipeline rupture) and there was evidence of a “direct hydrological connection between [the] ground water and navigable waters….”  This decision in fact expands the CWA even further than the Maui opinion, because it held that the CWA covered discharges when the original release of pollutants from the point source has ceased, but the pollutants continue to travel diffusely through groundwater.  In a September 2018 decision, a different Fourth Circuit panel in Sierra Club v. Virginia Electric & Power Company acknowledged the Upstate Forever panel’s adoption of the direct hydrological connection theory but rejected liability on the grounds that the coal ash landfills and basins at issue were not point sources.   

Finally, on the same day in September 2018, the Sixth Circuit issued decisions in Kentucky Waterways Alliance v. Kentucky Utilities Company and in Tennessee Clean Water Network v. Tennessee Valley Authority.  Both cases dealt with alleged discharges through groundwater from coal ash basins to navigable waterways.  Contrary to the Fourth and Ninth Circuits (and in line with the earlier circuit court case law), the Sixth Circuit held that groundwater was not a point source and that these discharges are not regulated since they must be directly from the point source to a water of the United States.

Petitions for writs of certiorari before the Supreme Court have proceeded on similar timeframes in the Maui and Upstate Forever cases.  In each case, the petitioners filed their petitions in August 2018.  The Maui petition addressed the indirect discharge via groundwater issue and a fair notice question.  The Upstate Forever petition raised both the indirect discharge through groundwater issue and whether an ongoing violation for purposes of a CWA citizen suit occurs when the point source ceased discharging but pollutants are still reaching navigable waters via groundwater.  In December 2018, the Supreme Court, signaling interest in the cases, requested the Solicitor General to file an amicus brief in both cases by January 4, 2019, expressing the view of the United States.  In that amicus brief, the United States urged the Supreme Court only to accept the Maui case, and only on the groundwater discharge issue.  The United States’ rationale was that Maui presented the groundwater discharge issue more squarely, since the ongoing violation issue in Upstate Forever was a threshold concern.  The brief separately observed that EPA was planning to take action shortly in response to its February 2018 request for comment on the groundwater discharge issue. 

On February 19, 2019, the Supreme Court, adhering to the United States’ request, accepted only the Maui petition and only on the groundwater discharge question.  The Maui case will likely be the Supreme Court’s most seminal CWA decision in over a decade, since the split decision in Rapanos v. United States, 547 U.S. 715 (2006).  Industry should track this case closely, as its resolution will have an effect on everything from federal and citizen suit enforcement to National Pollutant Discharge Elimination System permit requirements.   

Does the Clean Water Act Cover Discharges To Or Through Groundwater?

Posted on June 15, 2016 by David Buente

An issue that has recently come to the forefront of Clean Water Act (“CWA”) jurisprudence in numerous district courts across the country and which is currently before the Ninth Circuit is whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  The CWA prohibits discharges from point sources to navigable waters, defined as “waters of the United States,” unless they are in compliance with another provision of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  Whether discharges to groundwater hydrologically connected to a surface water body fall under this prohibition is a question with far-reaching consequences for facilities as varied as coal ash basins, slurry pits, retention ponds, and hydraulic fracturing wastewater ponds, all of which could theoretically be deemed to be in violation of the CWA under this hydrological-connection theory if they leak into groundwater at all.

As a preliminary matter, there is no question that isolated groundwater itself is not a water of the United States regulated under the CWA.  First, multiple courts, including several circuit courts of appeals, have held that groundwater is not “waters of the United States.”  Second, the legislative history surrounding the CWA indicates clearly that Congress considered setting standards for groundwater or explicitly including it in the NPDES permitting program and decided against such an approach.  Finally, in the rule, now stayed by the Sixth Circuit, which EPA and the Army Corps of Engineers promulgated last year defining the term “waters of the United States,” the agencies explicitly stated that they had “never interpreted” groundwater “to be a ‘water of the United States’ under the CWA.”  80 Fed. Reg. 37073

The hydrological connection issue is not a new one; both the Seventh Circuit in 1994 and the Fifth Circuit in 2001 determined that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (“OPA”) (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  In the past few years, however, the frequency of opinions on this topic has increased, and district courts have been very much split on this issue.  Some courts and commentators have dubbed this theory of regulation the “conduit theory,” with the idea being that the groundwater serves as a conduit between the point source and the water of the United States. 

Three district courts have recently rejected the conduit theory.  In 2014, in Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., the Eastern District of North Carolina confronted the issue of whether seepage from coal ash basins at one of the defendant’s power plants, alleged to contain contaminants and to carry those contaminants through groundwater into a lake, was a discharge prohibited by the CWA.  The court emphatically held that “Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”  As justifications for its holding, it cited the CWA’s dearth of language actually referring to groundwater, its legislative history, and the 2006 Supreme Court case on the meaning of waters of the United States, Rapanos v. United States, in which the plurality opinion and Justice Kennedy’s concurrence appeared to reflect a limited construction of the term.  The following year, in 2015, the District of Maryland came to a similar conclusion in Chevron U.S.A., Inc. v. Apex Oil Co., Inc.  The court held that “even if it is hydrologically connected to a body of ‘navigable water,’” groundwater is not regulated under the OPA, also citing the language of the CWA, its legislative history, and Rapanos.  Likewise, in 2013, in Tri-Realty Co. v. Ursinus College, the Eastern District of Pennsylvania concluded that “Congress did not intend either the CWA or the OPA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”

Other recent district court opinions, however, have come to the opposite conclusion.  In 2014, in Hawai’i Wildlife Fund v. County of Maui, the District of Hawaii confronted the issue of whether the County would need a NPDES permit to discharge waste into underground injection wells when plaintiffs contended that some of the injected wastewater eventually finds its way to the Pacific Ocean.  The district court concluded that “liability arises even if the groundwater…is not itself protected by the Clean Water Act, as long as the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.”  The district court also cited Rapanos in support of its argument.  That case is now before the Ninth Circuit on appeal, and the Department of Justice recently filed an amicus brief supporting the argument that there is CWA jurisdiction where pollutants move through groundwater to jurisdictional surface waters if there is a “direct hydrological connection” between the groundwater and surface waters.  Likewise, in 2015, in Yadkin Riverkeeper v. Duke Energy Carolinas, LLC, the Middle District of North Carolina held that it had jurisdiction over claims where “pollutants travel from a point source to navigable waters through hydrologically connected groundwater serving as a conduit between the point source and the navigable waters.”  That court based its determination in part on the idea that taking an expansive view of the types of discharges which the CWA prohibits is most in line with the statute’s purpose.  A few weeks later in Sierra Club v. Virginia Electric and Power Co., the Eastern District of Virginia, citing Yadkin Riverkeeper, held that a CWA citizen suit against Dominion Virginia Power using the conduit theory should survive a motion to dismiss.

The line of cases rejecting CWA jurisdiction over discharges to groundwater which is hydrologically connected to surface waters of the United States gets it right.  As the legislative history proves, Congress considered regulating discharges to groundwater and rejected such an approach.  This decision is reflected in the language of the statute.  Moreover, in Rapanos, the Supreme Court restricted the factual scenarios under which a wetland could be considered a water of the United States, thus revealing that a majority of the justices on the Court favored a narrower jurisdictional reach under the CWA.  Finally, to accept the “conduit theory” would be to write the “point source” requirement out of the statute.  As described above, a discharge must come from a point source, which the CWA defines as a “discernible, confined and discrete conveyance.”  Groundwater seepage seems to be about as far from a “discernible, confined and discrete” source as it gets, resembling nonpoint source pollution like stormwater runoff.