Clean Water Act Application to Groundwater: Keeping Score

Originally published by tiffany.dowell.

A major issue with regard to the scope of the Clean Water Act is popping up in courtrooms across the United States.  Are point source discharges into groundwater, that eventually reach a “water of the United States”, within the scope of the Clean Water Act’s jurisdiction?  This issue is growing and has been decided differently by courts across the country.  The legal question is teed up and could potentially reach the United States Supreme Court next year.  Let’s take a look at this issue and the results from various cases.

Excavation of coal ash pond via Duke Energy

Background

The Clean Water Act (CWA) Section 402 prohibits the “discharge of pollutants” from “point sources” into “navigable waters” without a federal National Pollutant Discharge Elimination System (NPDES) permit.

Each of these terms is further defined under the Clean Water Act.  “Discharge” involves the “addition of any pollutant to navigable waters from any point source.”  A “pollutant” is broadly defined and includes any type of industrial, municipal, or agricultural waste.  Examples could include soil, rock, fertilizer, herbicides, pesticides, or manure.  A “point source” is defined as “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Finally, “navigable waters” are defined as being “waters of the United States (WOTUS),” the proper definition of which there have been years of debate and litigation.  But for decades, groundwater has not been at issue under the CWA.

In February 2018, after a number of legal disputes raised the question about the application of the CWA to situations where groundwater served as a conduit to the pollutant reaching a water of the United States, the Environmental Protection Agency sought public comment on this issue.  The EPA sought public input on whether a permit should be required only in situations where the pollutants discharged into the groundwater reach a jurisdictional surface water to which the groundwater has that hydrologic connection. [Read Request for Comment here].

Legal Question

In understanding the legal issue in these cases, it is helpful to understand what is not at issue.

First, the existence of “pollutants” is not at issue in these cases.

Second, whether groundwater is a “water of the United States” such that every discharge of a point source pollutant would require a NPDES permit has not been a central issue in most of these cases.  One trial court in Hawaii did rule that groundwater was jurisdictional, and that issue may come up again, but most courts are looking not at groundwater as a WOTUS, but instead as a conduit or a pathway to a WOTUS.  Every federal appellate-level court to address this issue has found that groundwater, alone, is not a water of the United States.  The United States Fifth Circuit Court of Appeals made this clear back in 2001, stating that the scope of the CWA “is not so expansive as to include groundwater within the class of waters protected by the Clean Water Act.”  Further, courts on both sides of the issue have rejected the argument that the groundwater, itself, is a point source.  Both the US Court of Appeals for the Sixth Circuit and the Fourth Circuit rejected this reasoning in cases this year.

Instead, the courts are wrestling with the definition of “point source” and primarily are looking to whether or not there is some requirement of directness requirement when pollutants are released into groundwater and, eventually, make way into navigable waters.  Thus, the question at issue for the courts is as follows:  If a pollutant is discharged into groundwater, and that groundwater is hydrologically connected to a water of the United States such that the pollutant eventually reaches the WOTUS, does the CWA apply to that discharge?  In other words, does the CWA apply to indirect discharges of pollutants that travel through groundwater to jurisdictional waters?

Cases Finding CWA Applicable to Indirect Discharges into Groundwater

 Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018) 

The County of Maui has wastewater facility wells disposing sewage (effluent) into groundwater and eventually into the Pacific Ocean.  All parties agree that once the effluent is injected into the groundwater, some of it eventually reaches the Pacific Ocean.  This conclusion was confirmed by various studies, including one conducted in 2013 using tracer dye to determine when and where the effluent disposed of in the wells took to reach the Pacific.

The Hawai’i Wildlife Fund filed suit and the trial court found that the County of Maui violated the Clean Water Act by discharging effluent into groundwater and into the Ocean without the required NPDES permit.  The trial court also held that groundwater was a Water of the United States and a permit was required.  The County appealed to the United States Court of Appeal for the Ninth Circuit.

The Ninth Circuit upheld the trial court decision.  The Court easily found that the effluent was a pollutant and that the wells constitute a “point source” discharge.  The court “assumed without deciding” that groundwater was neither a point source discharge, nor a Water of the United States. The critical issue in the case became whether the Clean Water Act applies only where the pollutant is discharged directly into a Water of the United States, or whether it applies where a pollutant is discharged into groundwater and then indirectly makes its way into a Water of the United States.

The Court held that pollutants from a point source ended up in a Water of the United States, a permit was required, regardless of the fact that it travels through groundwater as a channel to reach the jurisdictional water.  Thus, because the County (1) discharged pollutants from a point source, (2) the pollutants are “fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water,” and (3) the pollutant levels reaching the navigable water are more than de minimus, the Clean Water Act does apply and a NPDES permit was required.

The County has appealed this case to the US Supreme Court.

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4^th Cir. 2018)

When a pipeline rupture caused gasoline to seep into nearby groundwater, conservation groups brought suit alleging that the gasoline traveled an additional 1,000 feet into “navigable waters” and, thus, the pipeline company violated the CWA by making an unpermitted discharge.  Kinder Morgan moved to dismiss the case and the trial court did just that, finding that the CWA did not apply to such indirect discharges of pollutants into groundwater.

On appeal, the Fourth Circuit reversed, finding that the CWA did not limit discharges only to those made “directly” into a navigable water.  “We hold…that to qualify as a discharge of a pollutant under the CWA, that discharge need not be channeled by a point source until it reaches navigable waters.”  The court then limited such discharges to which the CWA would apply to those that were “sufficiently connected to navigable waters.”  This requires a fact-based analysis of hydrological connectivity, looking at the time, distance, geology, flow, and scope of the discharge.  Here, the allegations of pollutants seeping into groundwater only 1,000 feet from the ruptured pipeline, plus evidence that it was gasoline from the pipeline found in the navigable water was sufficient evidence to state a claim and allow the case to proceed.

Kinder Morgan has sought review of this decision by the US Supreme Court.

Sierra Club v. Virginia Electric & Power Co., 903 F.3d 403 (4th Cir. 2018)

This case involves a coal-fired power plant.  Plaintiffs alleged that the coal ash ponds violated the CWA because, without a permit, they polluted the groundwater near the plant and, eventually, the pollutants reached the Elizabeth River and Deep Creek.  The trial court, following a bench trial, sided with the plaintiffs, finding that the CWA did cover discharges into groundwater that had a “direct hydrological connection” to navigable waters such that the pollutant would reach these jurisdictional waters.  The defendants appealed.

Applying their decision in Upstate Forever, the Fourth Circuit affirmed the trial court’s ruling that indirect discharges of pollutants that eventually reach navigable waters may be governed by the Clean Water Act where a direct hydrological connection between the groundwater and navigable water can be shown.  Because the trial court found a hydrological connection, and the defendants did not challenge that on appeal, the court affirmed this portion of the decision.

However, the court went on to address the issue of whether each settling pond constituted a “point source.”  The Fourth Circuit found that the ponds were not point sources.  “We conclude that while arsenic from the coal ash stored on defendants site was found to have reached navigable waters–having been leached from the coal ash by rain water and groundwater and ultimately carried by groundwater into navigable waters–that simple causal link does not fulfill the CWA’s requirement that the discharge be from a point source.”  Thus, the Fourth Circuit found the CWA inapplicable to this case and reversed the trial court’s verdict.

Thus, this case essentially held that an indirect discharge from a point source into groundwater could require a NPDES permit, that was not the situation in this case because the coal ash ponds were not a point source as required by the CWA.

Recent Cases Finding CWA Inapplicable to Indirect Discharges into Groundwater

Kentucky Waterways All. v. Kentucky Utilities Co. (6th Circuit)

A coal-fired power plant generates coal combustion residuals of fly ash and bottom ash as a result of its coal-burning processes.  Historically, the residuals were disposed of by transport through a sluice system to settling ponds.  The Sierra Club claims that the plant’s settling ponds are contaminating groundwater in the area and that the contaminated groundwater was discharging via spring into Herrington Lake.  They filed a citizen suit against the plant based, in part, on an alleged violation of the Clean Water Act, claiming that the plant is discharging pollutants, which have seeped from the ponds into the groundwater which emerges from springs and discharges into Herrington Lake, a Water of the United States, without a permit.

The plant filed a Motion to Dismiss the Clean Water Act claims because the Sierra Club did not allege that “pollutants are conveyed directly” from the ponds to the navigable waters and that the pollution is non-point source, which is not governed by the Clean Water Act.  The plaintiffs responded that their allegation that the groundwater is hydrologically connected to the Water of the United States was sufficient to state a claim.

The US Court of Appeals for the Eastern District of Kentucky sided with the plaint and dismissed the case.  In analyzing the issue, the Court noted that the Plaintiffs do not argue the groundwater itself is a WOTUS and the Court said that was “with good reason” as the vast majority of courts to consider this issue have rejected that argument.  However, courts are divided over whether hydrologically connected groundwater qualifies as a point source under the Clean Water Act.  This court found that it does not and stated that “adopting this theory would be inconsistent with the text and structure of the Clean Water Act.”

Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d 436 (6th Cir. 2018)

Yet again, this case involves a coal-fired power plant in Tennessee allegedly discharges pollutants from coal ash ponds into groundwater, and eventually into the Cumberland River.  After a trial, the court found that the defendant did violate the CWA because, without a required permit, the coal ash ponds discharged pollutants through groundwater that is hydrologically connected to the Cumberland River.

The Sixth Circuit reversed, stating that it “found no support for this theory in either the text or history of the CWA and related environmental laws.”  Thus, “for a point source to discharge into navigable waters, it must dump directly into those navigable waters.”  Thus, the trial court decision was reversed with regard to liability under the Clean Water Act.

Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-CV-2148 (C. D. Ill. Nov. 14, 2018)

This trial level case is the most recent decision addressing this issue. Here, another coal-fired power plant’s coal ash ponds were at issue.  Plaintiffs claim that groundwater monitoring indicates that pollutants including boron and sulfate have been seeping from the pond into the groundwater and, eventually, into the Middle Fork River.  The plaintiffs allege that the plant is discharging pollutants without the required NPDES permit.

The trial court sided with the defendants.  Relying on Village of Oconomowoc Lake v. Dayton, a case addressing this issue decided by the 7th Circuit in 1994, the trial court in Prairie River held that discharges of pollutants into groundwater were not covered by the Clean Water Act.  Specifically, the Oconomowoc court stated “neither the Clean Water Act nor the EPA’s definition asserts authority over groundwater, just because these may be hydrologically connected with surface waters.”  Based on this binding precedent, the trial court in Prairie Rivers held that “discharged from artificial ponds into groundwater are not government by the CWA, even if there is an alleged hydrological connection between the groundwater and surface waters qualifying as ‘navigable waters’ of the United States.”

Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F.Supp.3d 798 (E.D.N.C. 2014) 

I’ll give you one guess as to the factual situation in this case…coal ash ponds, yet again.  Plaintiffs allege pollutants seeped from the ponds into groundwater and eventually reached nearby Sutton Lake.  The trial court found 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.”  Thus, the claims related to discharges through groundwater were dismissed.

What Happens Next?

Both the Hawai’i Wildlife Fund and the Upstate Forever cases have sought review before the United States Supreme Court.  While the court only accepts review of a small number of cases each term, the fact that a circuit split exists between federal courts on an issue does make review at least somewhat more likely.  In the Hawai’i case, a number of environmental groups has asked the US Supreme Court not to accept the petition for review, arguing that the lower court decision comports with the intent of the CWA.  Just last week, the Court requested that the United States Solicitor General weigh in on this issue.  [Read article here.]

As for the agricultural industry, the potential impacts of this type of ruling could be significant.  How would this legal theory apply to lagoons on hog or dairy farms, for example?  So far, as noted above, many of the cases involved coal ash ponds, which are very unique sites.  None of the cases have involved production agriculture.    However, any potential ruling from the US Supreme Court could, depending on the language and scope, have major impacts on agriculture.  At the very least, in the absence of settled law on this question, these cases could potentially open up a new litigation strategy for anti-agriculture groups looking for potential ways to get into the courthouse.

Stay tuned!

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