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05.01.2018 Courts and EPA Continue to Debate Role of Groundwater in Clean Water Act Jurisdiction and NPDES Permitting By: Henry R. "Speaker" Pollard, V

EPA recently announced that it is seeking comments on how to address one of the more vexing issues involving EPA’s jurisdiction under the Clean Water Act (“CWA”): whether discharged wastewater or stormwater that passes through groundwater before reaching regulated surface waters is subject to permitting under the CWA’s National Pollutant Discharge Elimination System (“NPDES”) program.  As noted in our past newsletters, this is not a new concern, and evolving court decisions do not suggest any consensus.  (See the January and May, 2017 editions at http://www.williamsmullen.com/environews.)  EPA has now decided to reexamine whether this groundwater “pass-through” effect may serve as a basis for NPDES permit applicability.

Under the CWA, “the discharge of any pollutant” is generally prohibited unless it is authorized by a permit or otherwise allowed by the CWA.  The CWA defines “discharge of pollutants” as “any addition of any pollutant” from a point source to navigable waters, waters of the contiguous zone or the ocean.  The term “navigable waters” is defined in the CWA as “waters of the United States, including the territorial seas,” which, in turn, is defined by NPDES regulations to include certain surface water features and wetlands, but not groundwater.  A point source is “any discernable, confined and discrete conveyance . . . from which pollutants are or may be discharged.”  Examples include a pipe, ditch, lagoon, or well, among other devices or features.  Typical diffused or fractured geologic formations containing groundwater do not readily constitute a “discernable, confined and discrete conveyance.”  Thus, a discharge of pollutants to groundwater before reaching jurisdictional waters would not appear to be an addition of pollutants to “waters of the United States” – at least not directly – and so would not appear to be a regulated discharge subject to NPDES permitting.  However, EPA guidance opines that groundwater pass-through situations may trigger NPDES permit requirements or violations where there is a “direct hydrological connection” in the groundwater between a discharge’s point source and “waters of the United States.”  (Note that state NPDES programs must be at least as stringent as EPA’s, so they generally follow EPA’s lead here.)  These are fact-specific situations involving a variety of hydrogeological and evidentiary factors. 

Federal courts continue to address this issue with some varied and significant recent developments.  Following the federal district court in Sierra Club v. Virginia Electric & Power Company adopting EPA’s policy related to seepage from a coal ash pond in Virginia (see the May 2017 newsletter), a Tennessee federal district court followed suit.  A Kentucky federal district court went the opposite way, holding that no NPDES permit was required for coal ash pond seepage into regulated waters via groundwater.  More recently, two federal circuit courts have ruled on the issue, creating an apparent and significant split among at least four federal circuit courts as to how far NPDES jurisdiction extends into and through groundwater to traditional regulated surface waters.

First, in Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs only needed only to show that “the pollutants are fairly traceable from the point source” through the groundwater to the receiving regulated waters to demonstrate an unpermitted discharge.  The court said it was “of no import” that the pollutants had to travel from the point source (here, wastewater injection wells releasing to groundwater) through groundwater to reach regulated surface waters (here, ocean waters).  “To hold otherwise would make a mockery of the CWA's prohibitions.” 

Second, in Upstate Forever v. Kinder Morgan Energy Partners, L.P. – a case concerning a pipeline spill in South Carolina – the Fourth Circuit recently ruled that spilled petroleum travelling via groundwater to nearby regulated surface waters is indeed subject to the CWA’s prohibition of a discharge without an NPDES permit. Deferring to EPA’s policy and overturning the lower district court decision, the Fourth Circuit held that NPDES permits are required for pollutants discharged from a point source indirectly to regulated waters where there is a “direct hydrological connection” between the two.  Importantly, the Fourth Circuit took this position even though the release had been stopped, ending the actual discharge and arguably ending any ongoing violation necessary for a citizen suit under CWA as brought in this case.  Even though the activity causing the violation had ended, the court opined that the violation itself had not necessarily ended due to alleged continuing migration of the residual contamination plume.

Energized at least in part by the earlier varying caselaw, and in tandem with the pending Clean Water Rule designed to redefine “waters of the United States,” EPA issued a public notice in February seeking comment on how best to address the groundwater pass-through effect in relation to CWA jurisdiction and NPDES permitting decisions.  Comments are due by May 21, 2018.  In particular, EPA seeks input on (i) whether or how the groundwater pass-through effect fits within the CWA’s text, structure and purposes addressing prohibited discharges and discharge permitting; (ii) whether such discharges are sufficiently addressed or should be addressed through current state law and programs or through different federal regulatory programs and permitting requirements; (iii) whether EPA should amend or clarify its prior guidance and policy statements concerning such discharges to offer increased certainty to regulated parties and the public or to specify the sort of hydrologic connectivity that does (and does not) trigger NPDES permitting obligations; and (iv) if changes to current policy are needed, in which form and by what process should EPA pursue such changes (e.g., memoranda, guidance, or rulemaking).

Even as EPA seeks greater clarity on these issues, these recent cases tend to advance application of the NPDES program where groundwater is involved, increasing uncertainty for regulated parties.  In addition, any action by EPA to clarify or modify its existing policy through further interpretive guidance or even regulation is likely to face mixed reviews from stakeholders and could be challenged by parties dissatisfied with any changes that are made.  The bottom line is that regulated parties are likely to face continuing uncertainty over these issues until they are presented to and decided by the U.S. Supreme Court.

“Clean Water Act Coverage of ‘Discharges of Pollutants’ via a Direct Hydrologic Connection to Surface Water,” 83 Fed. Reg. 7126-7128 (Feb. 20, 2018).

Sierra Club v. Va. Elec. and Power Co., 247 F. Supp. 3d 753 (E.D. Va. 2017); Tennessee Clean Water Network v. Tennessee Valley Authority, 273 F.Supp.3d 775 (M.D. Tenn. 2017); Kentucky Waterways Alliance v. Kentucky Utilities Co., No. 5: 17–292–DCR, 2017 WL 6628917 (E.D. Ky. December 28, 2017); Haw. Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018); Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, WL 1748154 (4th Cir. Apr. 12, 2018).