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On February 19, 2019, the United States Supreme Court granted certiorari in a Clean Water Act (CWA) case with far-reaching implications for many industries, including agriculture. The case is Hawai‘i Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir. 2018). The question the Court agreed to answer is: Does the CWA require a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater?
In County of Maui, the Ninth Circuit ruled that the county had violated the CWA by discharging pollutants from a point source into navigable waters without an NPDES permit. What makes the case unique is that the point sources at issue—wastewater injection wells—did not discharge the pollutants directly into the navigable water, the Pacific Ocean. Rather, the county injected the pollutant (treated wastewater called effluent) into groundwater, which carried the effluent from the point source to the navigable water. The Ninth Circuit ruled that because the indirect discharges were “fairly traceable” from the injection wells to the Ocean, an NPDES permit was required.
On April 12, 2018, the Fourth Circuit generally followed the reasoning of the Ninth Circuit in County of Maui in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) Rather than apply the Ninth Circuit’s “fairly traceable” test, however, the Fourth Circuit ruled that CWA liability can arise where the groundwater through which an indirect discharge passes has a “direct hydrologic connection” to the surface water. The Fourth Circuit used this test to find that a pipeline company could face CWA liability where gasoline from a pipeline rupture migrated through soil and groundwater before reaching navigable waters.
On September 24, 2018, the Sixth Circuit took a different approach in two cases and held that the Clean Water Act does not apply to pollutants that travel through groundwater before entering navigable waters. Tennessee Clean Water Network, et al. v. TVA , 905 F.3d 436 (6th Cir. 2018); Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018). In Kentucky Waterways, the plaintiffs alleged that the operator of a coal-burning power plant could be liable under the CWA for releases of pollutants from coal ash ponds that seeped via groundwater flows into a lake. The court rejected the plaintiffs’ theory and ruled that CWA liability could only arise where pollution is added directly to navigable water by virtue of a point-source conveyance. Tennessee Clean Water had similar facts with a similar ruling. In this case, the Sixth Circuit again found that pollutants from coal ash ponds conveyed through groundwater into navigable water did not result in CWA liability. The court reasoned that there was no discharge of pollutant in that case because when the pollutants were discharged in to the river, which was the navigable water, they were not coming from a point source, but from groundwater, a non-point source conveyance.
This split in the circuits teed up the question that the Supreme Court will now review: Does the CWA require a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater?
The EPA had requested public comments on a similar question February 20, 2018. In a January 3, 2019, amicus brief filed by the U.S. Solicitor General at the request of the Supreme Court, the U.S. stated that the “EPA expects to take further action” based upon the results of its review “within the next several weeks.” The Solicitor thus stated that the parties should have the benefit of EPA’s views before briefs on the merits are due. No such action has yet taken place.
The Supreme Court decision in County of Maui may ultimately determine whether a meaningful distinction remains between point source and nonpoint source pollution under the CWA. The case may not be decided until early 2020.
We will keep you posted.
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