The Supreme Court of the United States has asked the Trump Administration to weigh in on the question of whether the Clean Water Act applies to pollutants migrating through groundwater before ultimately reaching “waters of the United States.” This issue is being closely monitored by lawyers, environmentalists, governmental entities and industries requiring permits for discharges to navigable waters of the United States. It is also of importance to those parties facing allegations that they have discharged pollutants to groundwater that has a potential hydrological connection to surface waters. In response, the Department of Justice (DOJ) has recommended that the Supreme Court first decide the question of whether a “discharge of a pollutant,” 33 U.S.C. 1362(12), occurs when a pollutant is released from a point source, travels through groundwater, and ultimately migrates to navigable waters. The circuit courts are split on this issue.
The Clean Water Act prohibits discharges of pollutants from a point source to navigable waters. Courts have differed on whether “waters of the United States” includes groundwater. A 9th Circuit Court of Appeals decision[1] in 2018 found that Clean Water Act jurisdiction applied to wastewater discharges that migrated from wells through groundwater and ultimately to the Pacific Ocean. Similarly, the 4th Circuit Court of Appeals[2] found that the Clean Water Act applied where a pipeline rupture leaked gasoline into groundwater and eventually reached streams because the gasoline reached “waters of the United States” through a “direct hydrological connection.” The 6th Circuit, however, issued two decisions[3] finding that discharges from coal ash ponds to groundwater, and ultimately to navigable waters, did not violate the Clean Water Act’s prohibition on unpermitted pollutant discharges.
How this question is ultimately resolved may have far-reaching consequences, especially as the Environmental Protection Agency (EPA) has recently proposed narrowing the definition of “waters of the United States.” Stakeholders will welcome clarity on this issue, as even the EPA’s position regarding groundwater has been fluid, having at different times stated that “waters of the United States” does not include groundwater, and at other times that point-source discharges of pollutants migrating through groundwater to navigable waters are subject to the Clean Water Act’s permitting requirements so long as there is a ‘direct hydrological connection’ between the groundwater and surface water.
We will continue to monitor this evolving issue and provide updates.
[1] County of Maui v. Hawaii Wildlife Fund 881 F.3d 754 (9th Cir. 2018).
[2] Kinder Morgan Energy Partners LP v. Upstate Forever 887 F.3d 637 (4th Cir. 2018).
[3] Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018); Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d 436 (6th Cir. 2018).
PartnerThomas D. Forrester Jr. has extensive experience litigating commercial disputes that involve environmental, construction, trade secret, premises liability and professional liability issues. His practice also ...
PartnerAs Chair of Connell Foley LLP's Environmental Law practice group, Agnes Antonian draws on her engineering background to address a broad range of complex environmental litigation and land use matters. Her environmental litigation ...