Articles, Newsletters and Advisories
(by Gary Steinbauer)
On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit Court in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir.), held that the Clean Water Act (CWA or Act) regulates point source discharges that travel indirectly through groundwater to a jurisdictional surface water—that is, a navigable “water of the United States.” Maui is the first federal appellate court decision in a recent wave of citizen suits by environmental groups relying on the so-called “groundwater conduit” theory of CWA liability. The Fourth Circuit and Sixth Circuit are poised to weigh in next and, in the wake of the Maui decision, the U.S. Environmental Protection Agency (EPA) opened a 90-day public comment period on whether it should clarify or revise its own past statements on the theory and whether it is consistent with the text, structure, and purposes of the CWA. 83 Fed. Reg. 7126 (Feb. 20, 2018).
Ninth Circuit requires National Pollutant Discharge Elimination System permit for underground injection of wastewater
In Maui, environmental groups sued the county alleging that it violated the CWA when treated sanitary effluent it injected into four permitted underground injection wells traveled some distance through groundwater to the Pacific Ocean. The results of a tracer dye test performed by EPA, as well as other federal and state agencies, showed that 84 days after the dye was injected into two of the county’s four wells, the dye emerged from submarine seeps along the ocean floor a half-mile away. The county’s treated sanitary wastewater reportedly represented one out of every seven gallons of groundwater that entered the ocean near the wastewater treatment plant.
The Ninth Circuit affirmed the district court’s decision finding the county liable for an unauthorized discharge under the CWA. Although it disagreed with the district court and held that groundwater is neither a point source or a “water of the United States,” the Ninth Circuit found the county liable under the CWA because (1) it discharged pollutants from a point source, (2) 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,” and (3) more than a de minimis amount of pollutants reached the navigable water. The court held that the injection wells were point sources under the CWA. See 33 U.S.C. § 1362(12) (defining “point source” and including a “well” as an example).
Relying heavily on the results of the dye tracer test and the county’s concessions, the Ninth Circuit concluded that the treated sanitary wastewater reaching the Pacific Ocean was “fairly traceable” to the county’s injection wells. The fact that the treated wastewater reached the Pacific Ocean indirectly after traveling first through groundwater did not change the Ninth Circuit’s view. For support, the Ninth Circuit referred to statements by Justice Scalia in his plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, Justice Scalia recognized that the CWA does not speak of prohibiting the “‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” Id. at 743 (emphasis in the original). The court refused to limit the CWA’s reach to direct discharges from a point source to jurisdictional surface waters. But the Ninth Circuit left for “another day the task of determining when, if ever, the connection between a point source and a navigable water is too tenuous to support liability under the CWA.” Any petitions for en banc review in the case are due March 19, 2018.
Will the Fourth and Sixth Circuits chart a different course?
On March 21, 2018, the Fourth Circuit is scheduled to hear the oral argument in Sierra Club v. Virginia Electric Power Company (VEPCO), a case involving alleged indirect discharges of arsenic from closed coal ash landfills through groundwater to a nearby river and creek. Similarly, an appeal of another case involving a closed coal ash landfill, Tennessee Clean Water Network v. Tennessee Valley Authority (TVA), is currently being briefed in the Sixth Circuit. The district courts in VEPCO and TVA both held that the coal ash landfills were points sources and unpermitted discharges of contaminated leachate traveling through groundwater to nearby surface waters violated the CWA.
Unlike the dye tracer test in Maui, the Fourth and Sixth Circuits’ appeals involve circumstantial evidence of a hydrologic connection. The district courts in VEPCO and TVA relied on samples taken from groundwater and surface water, hydrologic principles, and statements in reports prepared by the defendants to establish a direct hydrologic connection between the landfills and jurisdictional surface waters. The TVA case involved an epic battle of the experts, where each party presented five expert witnesses to testify on complex geologic and hydrologic concepts.
In Upstate Forever v. Kinder Morgan Energy Partners, L.P., currently pending before the Fourth Circuit, the district court refused to recognize the “groundwater conduit” theory. Upstate Forever involved a petroleum spill resulting from the rupture of an underground pipeline. The plaintiff’s complaint alleged that the gasoline released from the pipeline was contaminating groundwater and eventually migrating to jurisdictional surface waters. The Upstate Forever district court was persuaded by other federal district court and past federal appellate court decisions, holding that the CWA does not apply to discharges to groundwater, even if that groundwater is hydrologically connected to surface water. The Fourth Circuit heard oral argument in the Upstate Forever appeal in December 2017; a decision is expected this spring.
The appeals in Upstate Forever, VEPCO, and TVA have drawn interest from states and interest groups, resulting in the filing of numerous amicus briefs. More CWA citizen suits involving closed coal ash landfills could also be on the horizon. On January 31, 2018, an environmental group sent a pre-filing notice letter to a utility company in Illinois alleging point source discharges through hydrologically connected groundwater. Environmental groups have relied on the “groundwater conduit” theory to bring lawsuits against coal mining companies for unpermitted discharges from valley fill underdrains.
EPA looks to fill the void
Twenty days after the Ninth Circuit’s Maui decision, EPA published a notice in the Federal Register seeking comments on its previous statements regarding whether a point source discharge via groundwater that has a direct hydrologic connection to jurisdictional surface water is regulated by the CWA. At least one of EPA’s previous statements was in an amicus brief it filed in the Maui appeal, where it urged the Ninth Circuit to hold that discharges of pollutants to jurisdictional surface waters through groundwater must be covered by a permit to avoid liability under the CWA. The notice specifically requests input on whether the “groundwater conduit” theory is legally sound, whether such discharges would be better addressed under other federal or state authorities or permit programs, and whether EPA should use informal means or formal rulemaking to clarify or revise its previous statements.
The path ahead
The Ninth Circuit’s holding in Maui could significantly expand the National Pollutant Discharge Elimination System permit program and increase the risk of citizen suits under the CWA. With Fourth and Sixth Circuit decisions on the horizon, EPA weighing its options on how to shape the dialogue, and environmental groups continuing to rely on the theory, it does not appear that the controversy and litigation over the “groundwater conduit” theory will soon dissipate.
*Published in Trends March/April 2018, Volume 49, Number 4, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.