Does the Clean Water Act Cover Discharges To Or Through Groundwater, Part II?

Posted on June 15, 2017 by David Buente

One year ago, I published a blog post for the American College of Environmental Lawyers discussing a recent topic of interest in Clean Water Act (“CWA”) jurisprudence—whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  I observed that recent district court opinions had come out on either side of this issue, and argued that the line of cases rejecting jurisdiction over discharges to hydrologically connected groundwater correctly interpreted the CWA. 

Today, this issue is still very much a developing area of CWA doctrine.  First, additional district courts have issued decisions both in favor of and against CWA jurisdiction over discharges to hydrologically connected groundwater.  For example, in March 2017, in Sierra Club v. Virginia Electric and Power Co., a CWA citizen suit over alleged discharges from coal ash basins, the Eastern District of Virginia held that “[t]he CWA regulates the discharge of arsenic into navigable surface waters through hydrologically connected groundwater.”   However, a few weeks later, in April 2017, the District of South Carolina came to the opposite conclusion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., a CWA citizen suit regarding alleged discharges resulting from an oil pipeline spill, holding, “[T]he CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.”

These two cases should result in another circuit court weighing in on this important jurisdictional issue.  As noted in my previous post, only the Fifth and Seventh Circuits have issued opinions on this topic, both determining that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  The plaintiffs have already appealed the Upstate Forever decision to the Fourth Circuit, and the Virginia Electric and Power Co. decision has likewise been appealed, although a decision is pending on whether the latter district court decision is yet ripe for appeal.  The Fourth Circuit’s stance will be especially enlightening given that the Ninth Circuit’s Hawai’i Wildlife Fund v. County of Maui case has not advanced in any substantial manner since briefing took place last Summer.

Another important development on this front since my last post is the January 2017 transition from the Obama Administration to the Trump Administration.  On February 28, 2017, President Trump issued an executive order requiring the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers to review the agencies’ definition of “navigable waters” in their 2015 rule and to “consider interpreting the term” to reflect Justice Antonin Scalia’s narrower definition in his plurality opinion in Rapanos v. United States.  As noted in my last post, the 2015 rule already expressly excluded isolated groundwater as a water of the United States.  80 Fed. Reg. at 37073.  Any revised rule would almost certainly keep that exclusion, and could even expand upon it to explicitly exclude hydrologically connected groundwater from the definition of waters of the United States. 

On the other hand, it is worth noting that the Town of Marion, Massachusetts, recently filed a petition for review with the EPA’s Environmental Appeals Board of a National Pollutant Discharge Elimination System permit EPA Region 1 issued to Marion for its wastewater treatment plant in April 2017.  EAB Docket No. MA0100030.  That permit, issued by the EPA since President Trump’s inauguration, regulates groundwater contamination from sewage sludge lagoons and arguably adopts the broader view of Clean Water Act jurisdiction over hydrologically connected groundwater, so the Trump Administration’s position on this crucial jurisdictional issue is not yet clear.         

The issue of whether the Clean Water Act regulates discharges to groundwater which is hydrologically connected to a water of the United States continues to be an important, developing area of the law.  Hopefully, with cases pending before the Fourth and Ninth Circuits, some more clarity on this topic will emerge in the not-too-distant future.



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