Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate? 

AN UNDERGROUND RIVER RUNS THROUGH IT

Posted on November 8, 2017 by Andrew Goddard

Environmental groups have for years sought greater regulation of coal ash waste from coal-fired power plants.  It turns out an old-fashioned Clean Water Act (CWA) citizen suit is sometimes a more effective tool.

In August, Judge Waverly Crenshaw, of the U.S. District Court for the Middle District of Tennessee, ordered the Tennessee Valley Authority to “wholly excavate the ash waste disposal areas” at the Gallatin Steam Plant and “relocate the excavated coal ash to a lined impoundment with no significant risk of discharge to waters of the United States.”  TVA estimates that this will take 24 years at a cost of $2 billion.  The least surprising aspect of this case: TVA has filed a notice of appeal.

How?  In 2015, the Tennessee Clean Water Network and the Tennessee Scenic Rivers Association filed a CWA citizen suit claiming that groundwater flowed through two ash pond areas and then to the nearby Cumberland River was an unpermitted point source.  Judge Crenshaw’s 125-page opinion in support of the Order includes this diagram showing one zone of earth penetrated only vertically (by storm water) and one penetrated both vertically and laterally (by storm water and groundwater):

 

This pretty much sums up the central issue in the case:  Is the groundwater flow through the lower part of coal ash landfill, picking up contaminants and transmitting them laterally to the Cumberland River, regulated by the CWA?

In his lengthy opinion, Judge Crenshaw found that the CWA does regulate groundwater where there is a direct and immediate hydrologic connection if plaintiffs are able to “prove a link between contaminated groundwaters and navigable waters.”  TVA argued that the CWA cannot reach discharges enabled by infiltration of rainwater that was not channeled by human act because they are not point sources, but Judge Crenshaw found that the ultimate question regarding point source is whether the pollutants were discharged from a discernable, combined, and discreet conveyance by any means.  He found that the entire ash dewatering complex was a discernible, combined and discreet manmade concentration of waste and that it was a “conveyance” because it is “unlined and leaking pollutants,” and thus is by definition “conveying pollutants.”

It takes a lot for a judge to impose $2 billion of costs on a public utility.  His displeasure with how the problem had been addressed over the past several decades was palpable.  He wrote that the older of the two coal ash sites

“…offers a grim preview of what it means to leave an abandoned unlined coal ash waste pond in place next to a river.  [It] has not been a waste treatment facility for over forty-five years. It has been ‘closed’ for almost twenty years.  Still, water infiltrates it.  Still, it leaks pollutants.  Still, counsel for TVA and counsel for environmental groups are locked in conflict about what can and should be done about it. … As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties and conflicts giving rise to this case will survive another 20 years, 45 years or more.  While the process of closure by removal would not be swift, it would, at least, end.” 

With that, he ordered that TVA remove the coal ash to an appropriate lined site that will not discharge into waters of the United States.

There was one bit of good news for TVA: because of the cost of the chosen remedy, Judge Crenshaw decided not to assess penalties. 

Not every argument was about such large costs.  TVA’s objection to the plaintiffs’ request for attorney’s fees and costs included an objection to caviar included in a claim for $200 for food and snack items purchased from Kroger before and during the trial.  The plaintiff’s response included a receipt showing the “caviar” purchase was $16.24 of “Texas Caviar,” and attached Kroger’s recipe therefor.  It is devoid of fish eggs but does include chopped cilantro.  The recipe is available through PACER here.

Wisconsin’s Multi-Discharger Variance for Phosphorus – A Progress Report

Posted on June 8, 2015 by Linda Bochert

On May 5, 2015, the Wisconsin Department of Administration (WDOA) released its Preliminary Determination that compliance with the Wisconsin water quality-based effluent limitations (WQBEL) for phosphorus will cause “substantial and widespread adverse social and economic impacts on a statewide basis”, thus providing the foundation for availability of a statewide multi-discharger variance (MDV).

What brought this on?

In posts in 2011 and 2013, I described Wisconsin’s phosphorus reduction rule, including its compliance options of water quality trading and adaptive management. Recognizing that these innovative compliance alternatives to traditional construction are not viable for all dischargers, in 2014 Wisconsin enacted legislation to authorize a statewide MDV for those dischargers that cannot meet the WQBEL for phosphorus without a major facility upgrade.  Under the MDV, a point source will have more time to meet its phosphorus limitations.  However, during the extended period, they will be obligated to either implement nonpoint source reductions or to provide funding to counties to implement existing, but seriously underfunded, nonpoint source reduction programs.  The expectation is that most permittees will choose to fund their local county.  At $50/pound for the difference between the actual pounds of phosphorus discharged and the target value of 0.2 mg/L, we are talking about real money.

The MDV legislation required the WDOA, in consultation with the Wisconsin Department of Natural Resources (WDNR), to conduct a study to:

“determine whether attaining the water quality standard for phosphorus . . . through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible because it would cause substantial and widespread adverse social and economic impacts on a statewide basis.”

Based on work conducted by ARCADIS, The University of Massachusetts Donohue Institute, and Sycamore Advisors, consultants to WDOA and WDNR, the Preliminary Determination concludes that, without this variance:

·         “almost 600 Wisconsin businesses will be impacted as they continue to work their way out of the recession”

·         Wisconsin communities will experience a minimum cost of “$3.4 billion in capital expenditures which will rise to nearly $7 billion when accounting for interest” to meet increased capital costs

·         Annual operations and maintenance (O&M) cost of $405 million along with debt service will “equate to $708 million annually”

·         In 2025 when the full impact of the costs will be felt, statewide impacts will result in:

o   4,517 fewer jobs

o   $283.3 million in foregone wages

o   $616.6 million reduction in gross state product

o   11,000 fewer Wisconsin residents

A hearing on the Preliminary Determination was held on May 12, and written comments are due by June 11.  The next step is for WDNR to submit a request to the United States Environmental Protection Agency (USEPA) to approve the MDV for phosphorus for Wisconsin.   Once implementation of the MDV begins, much-needed nonpoint source funding can begin to flow.

Additional relevant documents are accessible via the WDNR website

Reducing Phosphorus to Wisconsin Waters – Another Tool in the Toolkit

Posted on July 2, 2014 by Linda Bochert

Imagine a nutrient reduction program that achieves financially manageable point source reductions while generating new cash for nonpoint source reductions, has bi-partisan support and requires no new state regulatory or fee programs.  Not possible you say?  Meet the Wisconsin Clean Waters, Healthy Economy Act, now codified at Wis. Stat. s. 283.16.

 In prior postings, I have described Wisconsin’s phosphorus reduction rule, including its compliance options of water quality trading and adaptive management. These are innovative alternatives to traditional construction but, unfortunately, not viable for all dischargers.

Now Wisconsin has another tool:  a multi-discharger variance, based on a finding of statewide social and economic impact, available to dischargers that cannot meet the water quality based effluent limitation (WQBEL) for phosphorus without a major facility upgrade.   Under the variance, a point source will still be required to decrease its phosphorus discharge -- meeting interim limitations of 0.8 mg/L, 0.6 mg/L, 0.5 mg/L, and the final WQBEL over four WPDES permit terms; and while doing so will make payments to the counties within its basin, providing cost-share dollars for nonpoint source phosphorus reductions.  At $50/pound for the difference between the actual pounds of phosphorus discharged and the target value of 0.2 mg/L, this is expected to generate real money -- which the counties will use to implement existing, but seriously underfunded, nonpoint source reduction programs.

Because point sources have installed treatment and reduced their phosphorus discharges by 90% or more to meet Wisconsin’s prior technology-based limit of 1.0 mg/L, the remaining primary contributors of phosphorus to our waters are nonpoint sources.  Yet getting funding for nonpoint source controls has been an ongoing, and largely unsuccessful, effort.  For context, the Green Bay Metropolitan Sewerage District (GBMSD) currently removes about 95% of the phosphorus it receives; while the wastewater it discharges accounts for less than 3% of the total phosphorus to the lower Green Bay.  With an investment of $200 million in capital improvements GBMSD could increase its removal to 98% -- a reduction of less than 2% of the total phosphorus load to the bay.   Redirecting significant dollars to nonpoint source programs should be a game-changer.

The Wisconsin Department of Natural Resources (WDNR) has been reissuing WPDES permits with phosphorus WQBELs and compliance schedules based on the phosphorus reduction rule that went into effect in December 2010.  The variance law went into effect on April 25, 2014, but won’t become available to WPDES permit holders until approved by USEPA.  The rule package is expected to be sent to USEPA for approval in January 2015, once the statewide economic impact analysis is completed. 

We have an opportunity for creative and meaningful point source and nonpoint source participation in reducing phosphorus discharges to our waters.  But time is of the essence.  Note to USEPA:  there is much to like here – please don’t let the moment pass us by.