Update: On September 24, 2018, the United States Court of Appeals for the Sixth Circuit held that the Clean Water Act does not apply to pollutants that travel through groundwater before entering navigable waters. Tenn. Clean Water Network, et al. v. TVA , No. 17-6155 (6th Cir. Sept. 24, 2018); Ky. Waterways Alliance v. Kentucky Util. Co., No. 18-5115 (6th Cir. Sept. 24, 2018).
On April 12, 2018, the United States Court of Appeals for the Fourth Circuit vacated a district court’s judgment and held that a discharge that passed from a point source through groundwater to navigable waters could support a Clean Water Act (CWA) claim. The Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P.,[i] became the second federal court of appeals to make such a ruling in 2018. The first was the Ninth Circuit in Haw. Wildlife Fund v. Cnty of Maui.[ii] These cases, in addition to the EPA’s recent request for comments regarding this issue, signal a recent push for certainty on the long-time question as to whether indirect discharges from point sources, through groundwater, and into navigable water are subject to regulation under the CWA.
The facts of Upstate Forever were straightforward. In 2014, a gasoline pipeline owned by a subsidiary of Kinder Morgan ruptured, causing approximately 369,000 gallons of gasoline to spill. Although the company repaired the pipeline, all parties agreed that the leaked gasoline had seeped into groundwater and continued to contaminate navigable waters 1,000 feet or less from the pipeline.
In response to the leak, two environmental groups filed a citizen suit alleging that Kinder Morgan had violated the CWA by discharging pollutants through a point source into navigable waters without an NPDES permit. The district court dismissed the action, ruling that it lacked jurisdiction over the action because the pipeline—which was the point source—had been repaired and there was no continuing discharge of pollutants directly into navigable waters. The district court also ruled that the CWA did not encompass the movement of pollutants through groundwater, even if the groundwater was hydrologically connected to the navigable water.
On appeal, the plaintiffs alleged that at least 160,000 gallons of gasoline remained unrecovered and that its seepage into tributaries from groundwater adjacent to the pipeline rupture constituted an ongoing CWA violation. The plaintiffs argued that the CWA prohibited the discharge of pollutants from a point source through groundwater that has a direct hydrological connection to navigable waters. The Fourth Circuit agreed, vacating the district court’s judgment and remanding for further proceedings.
The court first analyzed the definition of “discharge of a pollutant” within 33 U.S.C. § 1362(12)(A), which includes “any addition of any pollutant to navigable waters from any point source.” This definition, the court found, did not place temporal conditions on the discharge of a pollutant from a point source. Nor was it restricted to discharges of pollutants directly from the point source to navigable waters. Specifically, the court found that a discharge of a pollutant that moves through groundwater before reaching navigable water may constitute a discharge within the meaning of the CWA. Although the discharge must originate from a point source, that point source need only be the starting point or cause of the discharge. The point source itself, the court found, was not required to convey the discharge directly into the navigable waters. In other words, the discharge does not have to be channeled by a point source until it reaches the navigable water.
The Fourth Circuit did, however, restrict its holding. The court ruled that discharges of pollutants must be sufficiently connected to navigable water to be covered under the CWA. Although recognizing that a discharge that passes from a point source through groundwater and to navigable waters may support a claim under the CWA, the court clarified that the connection between the point source and the navigable waters must be clear. The court held that a direct hydrological connection establishes a clear connection between the discharge of a pollutant and navigable waters when the pollutant travels through groundwater. The court noted that a direct hydrological connection is a fact-specific finding that must be made on a case-by-case basis. The court clarified that it was not holding that the CWA covers discharges to groundwater itself. Rather the court specifically held that the alleged discharge of pollutants, reaching navigable waters located 1,000 feet or less from the point source by means of groundwater with a direct hydrological connection to such navigable waters, fell within the scope of the CWA.
One justice dissented from the opinion. In an extensive opinion, the dissenting justice argued that the court had no CWA jurisdiction because there was no ongoing violation under the meaning of the CWA since the only point source at issue—the pipeline—was not currently leaking or releasing any pollutants. The dissenting justice contended that this was an ongoing migration case, not an ongoing CWA violation, and that ongoing migration was, by definition, nonpoint source pollution, which was outside of the CWA’s reach.
The majority opinion from Upstate Forever, in part, relied upon the holding of the Ninth Circuit in Hawai’i Wildlife Fund v. County of Maui. There, the court affirmed a finding of CWA liability stemming from the discharge of pollutants into the Pacific Ocean traveling through groundwater from wastewater injection wells. In making its decision, the Ninth Circuit ruled that an indirect discharge must be “fairly traceable” from the point source (in this case, the wells) to the navigable water (the ocean). A tracer dye study had clearly connected the wells’ discharges to the pollutants in the ocean. In Hawai’I Wildlife Fund, the Ninth Circuit left for another day the task of determining when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.
The Fourth Circuit stated in footnote 12 of its Upstate Forever case that it saw “no functional difference between the Ninth Circuit’s fairly traceable concept and the direct hydrological connection concept developed by EPA.” Specifically, the court stated that “the direct hydrological connection concept may be viewed as a narrower application of the same principle, addressing point source discharges through groundwater.”
In between the issuance of Hawai’i Wildlife Fund and Upstate Forever, the EPA issued a notice requesting comments regarding “Clean Water Act Coverage of ‘Discharges of Pollutants’ via a Direct Hydrologic Connection to Surface Water.” 40 CFR § 122.2. EPA recognizes in its notice that it has previously stated that pollutants discharged from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional water may be subject to CWA permitting requirements. EPA has made these statements in previous rulemaking, permitting, and guidance documents, although most of these statements were collateral to the central focus of the rulemaking or adjudication. In its February 12, 2018, notice, EPA specifically requests comments on whether it should review and potentially revise its previous statements concerning the applicability of the CWA NPDES permit program to “pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to a jurisdictional surface water.” Comments must be received by EPA on or before May 21, 2018.
It appears that we may be reaching a decision point for this unsettled CWA jurisdictional question. At this juncture, court decisions appear to be favoring CWA jurisdiction over point source discharges passing through groundwater into jurisdictional water. EPA rulemaking, however could turn this tide. A few related cases also remain pending, and we will watch for petitions for certiorari to the U.S. Supreme Court. This question is just one of many uncertain issues regarding permitting requirements and the CWA. Although the courts in the above two cases did not deem groundwater to be "Waters of the United States" (the question was not considered), the district court in Hawai’I Wildlife Fund did so find. It also ruled that groundwater was a point source. These questions are critically important to agriculture. We will continue to monitor CWA litigation and watch EPA action, not only with respect to the groundwater issue, but also with respect to its much-anticipated revised Clean Water Rule.
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