Channeling Scalia: Does the Clean Water Act Regulate Indirect Discharges “to” Navigable Waters Via Groundwater?

Posted on December 11, 2018 by Patrick A. Parenteau

On December 4 the Supreme Court signaled its interest in this question when it requested the views of the Solicitor General on whether to grant review in two pending petitions for certiorari. In County of Maui v. Hawai'i Wildlife Fund, the Ninth Circuit held that wastewater injection wells are point sources requiring NPDES permits because the “pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” In Kinder Morgan Energy Partners LP v. Upstate Forever the Fourth Circuit held that gasoline from a ruptured underground pipeline that was seeping into a nearby waterway was subject to the CWA due to a "direct hydrological connection."

By contrast the Sixth Circuit as well as a different panel of the Fourth Circuit have ruled that leachate from coal ash pits that is polluting rivers and lakes is not a “discharge from a point source” requiring a permit under the CWA. Though a majority of the thirty-odd decisions on this issue have found in favor of CWA jurisidiction, there is a definite split among the lower courts as described in a handy chart and accompanying article published by Greenwire. In looking over the decisons it appears that the “conduit” theory, evaluating time and distance between the source of the pollutants and the receiving water, and often supported by a dye test, is perhaps the most defensible methodology for asserting jurisdiction over discharges to “tributary groundwater.”   

Meanwhile EPA is pondering whether to change its longstanding position, reiterated in the Clean Water Rule (aka WOTUS), that the CWA does cover, on a case-by-case basis, point source discharges to groundwater that are directly connected to navigable waters. Back in February EPA published a request for comment in the Federal Register on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” The comment period closed in May and since then there has been no futher announcement.

The SG’s response is due January 4, which is an unusually short turnaround time that indicates four Justices may be in favor of granting one or both of the petitions in time for argument this term. The SG could cite EPA’s ongoing review with the prospect of a new policy statement or rulemaking as a reason to deny review at this time, but it is unlikley the Court would accede to that. This issue has been kicking around for decades; it has generated a good deal of confusion among the lower courts and conflicting rulings not only among but within the Circuits; it adds to the uncertainty and controversy that plagues the implementation of the CWA; and it has significant economic and environmental implications. Awaiting further word from EPA is unlikely to clarify or resolve any of this. Nor is a re-interpretation of the statute by the current EPA likely to garner much deference from a Court that has shown signs of cutting back on the scope of the Chevron doctrine.

That leaves the question how should the Court resolve the issue. In the Maui case the Ninth Circuit relied fairly heavily on Justice Scalia’s plurality opinion in Rapanos in which he  recognized the CWA does not forbid the addition of any pollutant directly to navigable waters from any point source, ” but rather the “addition of any pollutant to navigable waters.” (547 U.S. 715, 743 (2006)) Though Rapanos was a splintered decision on many points there was no disagreement with Scalia’s view that the text of the statute clearly encompassed an indirect discharge that simply “washes into” navigable waters. Whether that view prevails this time around is of course unknown.

Any rule this Court would adopt would have to be narrowly tailored to situations where the source of the pollutant was clearly a “discrete conveyance” and the evidence of a direct hydrological connection to navigable water was convincing. But assuming those predicates were proven it would be hard to justify on either scientific or policy grounds excluding such discharges from the ambit of the permit program. Indeed it would create a pollution loophole that no other existing regulatory program --federal or state--would adequately fill.