You would think that the regulatory reach of the Clean Water Act(CWA), which was passed in 1972, would be well settled law.  However, recent litigation has demonstrated that this is certainly not the case.

Which Wetlands and Streams are Protected?

The U.S. Supreme Court has weighed in multiple times on which wetlands and streams are regulated under Section 404 of the Clean Water Act (CWA).  The Court’s most notable ruling is Rapanos, a plurality decision which is still being interpreted by lower courts.  The Court adopted a vague standard known as the “significant nexus” test to determine if waterways should be federally regulated.   The test looks at the physical, biological and chemical connection between a navigable water and the wetland/stream at issue. This blog has extensively discussed this topic in prior posts.

Are Discharges to Groundwater Covered?

Before you can discharge pollutants into a federally protected waterway (i.e. surface water) you must obtain a permit known as an NPDES discharge permit.  What has not been settled is whether an NPDES permit is required for discharges to groundwater that migrates into surface water.

The CWA prohibits discharges “to navigable waters from any point source.”  The term “navigable waters” includes any federally protected waters covered under the “significant nexus” test discussed above.  What has been an issue is whether groundwater that migrates into a federally protected water constitutes a discharge from a “point source.”

The Ninth and Fourth Circuit Courts each found that a discharge of pollutants into groundwater that migrates to a federally protected water is prohibited under the CWA.  The Fourth Circuit did require a direct hydrogeologic connection between groundwater and the surface water. (Click here to read prior post discussing this decision).

On September 24, 2018, the Sixth Circuit reached the opposite conclusion as the Ninth and Fourth Circuits. See, Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 18-5115 and Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155. Environmental groups brought CWA citizen suit actions alleging that an NPDES permit was required for pollutants leaching from coal ash ponds into groundwater which then discharged to surface water. The key findings of the Sixth Circuit include:

  • Ground water is not a “point source” because it is not a “discernible, confined, or discrete conveyance” (as point source is defined under the CWA);
  • A point source must dump directly into surface water (i.e. federally protected water), not indirectly through groundwater.

Judge Clay issued a strong dissent to this ruling, noting that the Sixth Circuit ruling would create a major loophole-  Industry could simply discharge into groundwater first, before it reaches surface water, to avoid triggering the need for an NPDES permit.

Onto the Supreme Court or EPA?

With a split among the Circuit Courts, there is a strong possibility that this issue will be taken up by the Supreme Court.  Until then, there will be different standards in different federal circuits as to the regulatory reach of the CWA.

Meanwhile, U.S. EPA has requested comments on whether the reach of the CWA should extend to discharges of pollutants from point sources that reach surface water through groundwater.  See, 83 Fed. Reg. 7126 (Feb. 20, 2018).  Whether EPA issues a regulation to clarify the reach of the Act has yet to be seen.  However, as is evident with EPA’s attempt to clarify Rapanos, any rule making effort will be a long road with legal challenges.