Under the Clean Water Act

environmental waterThe Clean Water Act (CWA or the Act) expressly forbids the discharge of pollutants without a permit. The term “discharge of pollutants” means the “addition of any pollutant to navigable waters from any point source.” Any discharge of pollutants must be covered under a federal or state discharge permit (e.g., a U.S. Army Corps of Engineers permit for the discharge of dredged and fill material or a National Pollution Discharge Elimination System (NPDES) permit for the discharge of other pollutants); otherwise the discharge would be in violation of the CWA. If it does not constitute a discharge of pollutants, then the release does not violate the CWA.

A flurry of recent cases around the United States has created a circuit split over whether the CWA governs discharges to groundwater that eventually add pollutants to navigable waters. However, there are a few points these courts seem to agree on.

Groundwater: A Navigable Water or a Point Source Itself?

First, Circuit Courts agree that groundwater is not, itself, a navigable water under the CWA, which is defined as “the waters of the United States” (WOTUS). If groundwater were a WOTUS under the CWA, then any point source discharge to groundwater would be regulated under the CWA, and such discharges of pollutants would require a permit. However, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 641 (4th Cir. Apr. 12, 2018), the Fourth Circuit recently made clear that the CWA does not cover all discharges to groundwater. In Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) amended by 886 F.3d 737 (9th Cir. Mar. 30, 2018), the Ninth Circuit also rejected the idea that all point source discharges to groundwater are covered under the CWA, citing other Circuit cases, including Rice v. Harken Expl. Co., 250 F.3d 264, 271 (5th Cir. 2001). In Rice, the Fifth Circuit stated that “the CWA definition of ‘navigable waters’ . . . is not so expansive as to include groundwater within the class of waters protected by the CWA.”

Second, Circuit Courts have consistently held that that groundwater is not a point source under the CWA, which is defined as “any discernible, confined and discrete conveyance.” The Sixth Circuit, in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, at *6 (6th Cir. Sept. 24, 2018), explained that groundwater itself is not a point source because it is not discernible, confined or discrete. “[W]hile dye traces can roughly and occasionally track the flow of groundwater, they do not render groundwater ‘discernible.’” Even the Ninth Circuit agreed in Hawai’i Wildlife Fund in rejecting the proposition that groundwater is a point source for purposes of the CWA. See 886 F.3d at 746 (characterizing groundwater as a “nonpoint source”).

Instead, groundwater is, itself, merely the medium pollutants might pass through before reaching a WOTUS. The contention becomes whether CWA liability was meant to include this type of indirect discharge.

Groundwater: An Indirect Path to Navigable Waters Covered Under the CWA?

Certain circuits (Fourth and Ninth) have taken the view that the addition of pollutants through groundwater to WOTUS can support a theory of liability under the CWA where there is “a direct hydrological connection” or a “fairly traceable” connection to a WOTUS. For these Circuits, the test depends on the connection between the groundwater and the surface water. For example, the Ninth Circuit, in Hawai’i Wildlife Fund, found CWA liability where wastewater was injected into the groundwater and could be traced through dye to ocean floor springs. The Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., found CWA liability where spilled gasoline had seeped into groundwater and eventually ended up in local lakes and rivers.

In Upstate Forever v. Kinder Morgan Energy Partners, L.P., the court explained “that a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.” In addition, the Fourth Circuit emphasized that the connection “must be clear.” Pulling from a permitting guidance manual for Concentrated Animal Feeding Operations, the Fourth Circuit pointed to certain factors to assess “the directness of a hydrological connection,” which included time, distance, geology, flow, and slope.

However, the Sixth Circuit wholly rejected this indirect theory of applying the CWA. In Kentucky Waterways All. v. Kentucky Utilities Co., the Sixth Circuit explained that “for a point source to discharge into navigable waters, it must dump directly into those navigable waters—the phrase ‘into’ leaves no room for intermediary mediums to carry the pollutants.” No. 18-5115, 2018 WL 4559315, at *7.

Conclusion

Overall, although the circuits do agree that groundwater is not a WOTUS and is not itself a point source, whether this indirect discharge described above is included in the CWA’s definition of “discharge of pollutants” needs to be clarified and the Supreme Court will have ample opportunity to weigh-in in the near future. The County of Maui has petitioned the Supreme Court for review of the Hawai’i Wildlife Fund decision, which was one of the earlier cases this year addressing groundwater discharges; the plaintiffs’ responses were filed in October. Kinder Morgan has also petitioned the Supreme Court for review of the Upstate Forever decision and the plaintiffs’ response was filed in October as well.

Assuming the Supreme Court grants cert, it is difficult to predict how the Court might rule. Each of these situations tend to be very factually different; from pumping wastewater directly into groundwater, to discharges to groundwater allegedly seeping into the ocean, to groundwater rising up and collecting pollutants from a contaminated site already regulated under CERCLA. Given the lack of clarity from the Supreme Court’s split decision in Rapanos v. United States, 547 U.S. 715 (2006), it is difficult to predict how broadly the Supreme Court will draw the CWA’s jurisdiction. However, the outcome may not be as clear cut as the outright exclusion of all discharges to groundwater favored by the Sixth Circuit in Kentucky Waterways All. v. Kentucky Utilities Co.

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For more information about how these decisions may affect your organization, please contact Coty Hopinks-Baul or Daniel Fanning of Husch Blackwell’s Environmental team.