By Jesse Richardson, JD

Five recent ‘groundwater as a conduit’ cases—two already appealed to the United States Supreme Court—make it likely that the highest court in the land will consider the issue soon. The cases consider whether the Clean Water Act (CWA) applies to pollutants that travel from a source through groundwater before entering navigable waters.

Cases addressing groundwater as a conduit
Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. March 30) provides the clearest case of a situation where the CWA should apply to discharges via hydrologically connected groundwater. In that case, Maui County disposed of treated effluent by injecting into injection wells. The treated effluent reaches the Pacific Ocean through groundwater. The court opinions do not reveal the distance traveled by the effluent before discharge except to describe the discharge as “some distance from the shore.” The county knew prior to establishing the disposal practice that the effluent would be discharged into the ocean, and considered direct discharge prior to settling on the injection wells. This discharge seems direct, and the result was certainly foreseeable.

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. April 12). likely provides the best example of the difficult line-drawing involved in other fact patterns. Conservation groups brought suit against the owner of an underground gasoline pipeline that ruptured. The suit alleges CWA violations where the gasoline seeped through groundwater into navigable waters 1,000 feet or less away. The US District Court for the District Court of South Carolina determined that the CWA did not apply, as no ‘discharge’ occurred. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 252 F. Supp.3d 488 (U.S.D.C., S.C. 2017), vacated and remanded, Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 ( 4th Cir. 2018). The Fourth Circuit Court of Appeals found that, over three years from the time that the pipeline has been repaired, an ongoing violation of the CWA continues to occur. A vigorous dissent found that since the pipeline has been repaired, no point source (and hence, no continuing violation) exists. Whether the short distance from the pipeline rupture and the navigable water swayed the Fourth Circuit remains unclear.

A recent decision by the Fourth Circuit Court of Appeals, Sierra Club v. Virginia Electric Power, 903 F.3d 403 (4th Cir. September 12), appears to conflict with Kinder Morgan. In this case, the Sierra Club alleged that the discharge of arsenic from coal ash piles on the site of a coal power plant into surrounding surfaces waters violated the CWA and state permits. The trial court found that rainwater and groundwater were leaching arsenic from the coal ash in the landfill and settling ponds, polluting groundwater (Sierra Club v. Virginia Appalachian Power, at 406). The groundwater carried the arsenic into navigable waters. Since the landfill and settling ponds are, according to the trial court, ‘point sources,’ the discharge of arsenic into navigable waters violates the CWA (Ibid). The Fourth Circuit Court of Appeals disagreed, finding that the diffuse nature of the seepage of arsenic by way of flowing rainwater and groundwater did not make the landfill or coal ash pond a ‘point source’ (Ibid, at 411). The lower court had conceded that the amount of groundwater or arsenic traveling to the navigable waterway could not be determined. “Such indeterminate and dispersed percolation indicates the lack of any facility constituting a discernible, confined, discrete conveyance” (Ibid). The court suggested that the Resource Conservation and Recovery Act (RCRA) provided the remedy sought by the Sierra Club.

The most recent two cases, decided on September 24 by the US Court of Appeals for the Sixth Circuit, involve handling, storage, treatment and transportation and disposal of coal ash (Kentucky Waterways Alliance v. Kentucky Utilities Co., F.3d, 2018 WL 4559315 [6th Cir. September 24, ]) and contamination from a coal ash pond (Tennessee Clean Water Network v. Tennessee Valley Authority, F.3d, 2018 WL 4559103 [6th Cir.]). The majority opinions drew a bright line rule: “…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” (Tennessee Clean Water Network, at 6; Kentucky Waterways Alliance, at 7).

The court, in both cases, rejected the notion that groundwater is a point source and expressly rejected the theory that groundwater pollution could give rise to liability under the CWA under the “so-called ‘hydrological connection’ theory.” In addition, in the Kentucky Waterways Alliance case, the court rejected the novel theory that karst terrain could constitute a ‘point source’ (Kentucky Waterways Alliance, at 6). Even though groundwater moves more quickly through karst terrain, the flow is neither discernible, discrete, nor confined, therefore not a point source (Ibid).

US EPA weighs in
Adding to the urgency of this issue, US EPA requested comment on the agency’s previous statements regarding the CWA and whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater on other subsurface flow that has a direct hydrologic connection to jurisdictional surface water may be subject to CWA regulation. The agency requested comment on whether it should consider clarification or revision of those statements and, if so, comment on how clarification or revision should be provided.

Given the US EPA’s request for comments and the fact that different courts of appeals have ruled differently on this issue (a split in the circuits), the US Supreme Court is likely to review the cases. The two cases from the Sixth Circuit and the additional case from the Fourth Circuit are likely to be appealed also, giving the court five cases with which to attempt to divine a rule on discharges to groundwater.

Many believe that the US Supreme Court should ultimately decide this issue. Review of the extensive case law on this matter reveals that distance from the point source to the navigable water, time between the release of the pollutant and the discharge, and foreseeability of discharge provide three major inquiries in these cases. All of these are factors that courts are well equipped to address. Although US EPA has discussed other factors, such as geologic and hydrogeologic settings, courts are also well-equipped to incorporate these factors into decisions, and litigants are likely to develop these facts in the litigation. Even supporters of the hydrologically connected groundwater rule suggest that the court should provide the guidance on the rule.1

Is groundwater adequately regulated by the states and by other federal statutes?
Another question that will undoubtedly guide the courts and US EPA is whether states protect groundwater under state groundwater quality statutes and under state common law (concluding that state and other federal protections are not enough1). The federal government protects groundwater under the RCRA, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Endangered Species Act (ESA) and the Safe Drinking Water Act (SDWA) (Id, 996-999). States traditionally control and protect groundwater resources. Any hydrologically connected groundwater theory must take great care to respect this cooperative federalism.2

Conclusion
In the next session, the Supreme Court is likely to take up the difficult issue of whether contaminants flowing through groundwater to navigable waters may be regulated under the CWA. Five cases provide both the opportunity to review and a range of circumstances in which the court may draw a line. The line-drawing, however, will prove difficult and many different factions will weigh in. The ‘groundwater as a conduit’ cases may well overtake the question of what constitutes “waters of the United States” as the most contentious issue under the CWA.

References

  1. Allison L. Kvien, “Is Groundwater that is Hydrologically Connected to Navigable Waters Covered Under the CWA?”, 16 Minn. J.L. Sci. Tech. 957, 1000 (2015).
  2. Damien Schiff, “Keeping the Clean Water Act Cooperatively Federal—Or, Why the Clean Water Act Does Not Directly Regulate Groundwater,” 42. Wm. & Mary Envtl. L & Pol’y Rev. 447 (2018) (rejecting the hydrologically connected groundwater theory).

About the author
Jesse J. Richardson, Jr. is a Professor of Law and the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic at the West Virginia University College of Law, as well as Policy and Research Advisor for Water Systems Council. He holds BS and MS Degrees in agricultural and applied economics from Virginia Tech and a Juris Doctorate Degree from the University of Virginia. Richardson formerly served as an Associate Professor at Virginia Tech and practiced law in his hometown of Winchester, VA. He consults and practices law on water issues across the United States.

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