By: Pam Nehring and Sean Sullivan

Companies and industries that operate sewer systems, ash ponds, retention ponds, surface impoundments, underground storage tanks and the like should be watching with interest regulatory and judicial developments on the reach of the Clean Water Act (CWA) permitting program.  The U.S. Environmental Protection Agency (EPA) has requested public comments on whether EPA should review and potentially revise its previous statements about application of the CWA NPDES permit program to pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow.  EPA has never stated that permits are required for pollutant discharges to groundwater in all cases, but has taken the position that permits are required where “there is a direct hydrological connection between groundwaters and surface waters.”  EPA now seeks comment on: (i) whether subjecting such releases to CWA permitting is “consistent with the text, structure, and purposes” of the CWA; (ii) whether such discharges through groundwater “would be better addressed” through other federal authorities; and (iii) whether some or all such discharges are addressed adequately through existing state or federal statutory and regulatory programs.  Comments are due by May 21, 2018.

Courts have not historically adopted the CWA interpretation embodied in the EPA’s previous statements.  Thus, in Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), the Seventh Circuit held that the CWA does not assert “authority over ground waters, just because these may be hydrologically connected with surface waters.”  This year, however, both the Ninth Circuit and the Fourth Circuit have issued opinions recognizing the more expansive view of CWA application.  And there are more cases in the queue for appellate decision in the coming months.

Ninth and Fourth Circuit Decisions

In Hawaii Wildlife Fund v. City of Maui, 881 F.3d 754 (9th Cir. 2018), the Ninth Circuit held that a NPDES permit is required for contaminated groundwater recharging into surface water.  Environmental groups brought a CWA citizen suit against the City of Maui for discharging treated sanitary effluent water into the ocean.  The City had a permit for disposing of treated sanitary effluent into four permitted deep injection wells.  A tracer dye test conducted by EPA and others showed that the dye eventually reached the ocean.  The Ninth Circuit affirmed the district court ruling that the discharge came from a point source (the well) and that “more than [a] de minimis” amount of pollutants were “fairly traceable from the point source… such that the discharge is the functional equivalent of a discharge into a navigable water.”  The court did not articulate a specific test for determining when a discharge is either “de minimis” or “fairly traceable” to the point source.

The Fourth Circuit cited Hawaii Wildlife Fund in an April 12, 2018 opinion reversing dismissal of plaintiff’s CWA citizen suit.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., ___ F.3d ___, 2018 WL 1748154 (4th Cir. 2018), gasoline was discharged into the groundwater through a leak in an underground pipeline that had been repaired at the time the lawsuit was filed.  The Fourth Circuit first held that plaintiff alleged a continuing violation of the CWA even though the leak had been repaired.  The court noted that the CWA does not require that the point source continue to release a pollutant for a violation to be ongoing, only that there be an ongoing “addition . . . to navigable waters.”

The court further held that a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant within the meaning of the CWA, if the discharge is “sufficiently connected to navigable waters.”  The court cited EPA’s “direct hydrological connection” statements, and noted that EPA’s interpretation “warrants respectful consideration.”  The court wrote:

“In light of the above considerations, we hold 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.”

The court viewed the EPA’s “direct hydrological connection” concept to be roughly equivalent to the Ninth Circuit’s “fairly traceable” concept in Hawaii Wildlife Fund, and observed that such determinations are necessarily fact-specific.  The Upstate Forever court held that plaintiff’s allegations in that case were sufficient to state a claim because the navigable waters were allegedly 1,000 feet or less from the point source.

More Appellate Decisions Coming

There are at least three more pending appellate cases addressing similar issues.  On March 21, 2018, the Fourth Circuit heard oral argument in Sierra Club v. Virginia Elec. & Power Co., 247 F. Supp. 3d 753, 758 (E.D. Va. 2017), which involves alleged discharge of arsenic from closed coal ash landfills to a river, through the groundwater.  The district court held that the coal ash landfills were point sources and that the arsenic migration through the ground water constituted an unpermitted discharge.

The Sixth Circuit has two cases pending, in which the district courts reached different conclusions.  In Tennessee Clean Water Network v. Tennessee Valley Auth., 273 F. Supp. 3d 775 (M.D. Tenn. 2017), the district court held that the CWA covers discharges of pollutants from ash ponds that reach surface water through groundwater.  By contrast, in Kentucky Waterways Alliance v. Kentucky Utilities Co., 2017 WL 6628917 (E.D. Ky. December 28, 2017), the district court dismissed a CWA citizen suit involving coal combustion pollutants from a coal-fired power plant that migrated to groundwater and eventually reached surface waters.

Parsing the meaning of jurisdictional “waters of the United States” and various methods of establishing hydrological connectivity and resulting legal consequences, has been difficult for all concerned.  It adds another layer of complexity and potential for regulation as well as citizen suits in an already challenging area, and it appears that courts and the EPA are struggling to establish a consistent approach.  The EPA’s request for public comment on this and related issues can be found at 83 Fed. Reg. 7126 (Feb. 20, 2018).

Pam Nehring is an experienced environmental attorney whose practice includes environmental permitting, NEPA compliance, brownfields development, remediation claims and litigation. For more information contact Pam Nehring at Daley Mohan Groble, P.C:
T: 312-422-5876