The Supreme Court has recently granted certiorari to answer the question of whether the Clean Water Act (“CWA”) regulates discharges of pollutants to groundwater that make their way to navigable waters.

There is no question that the CWA applies to point sources that discharge pollutants directly to navigable waters, but what happens if a point source discharges pollutants to groundwater, and the groundwater conveys the pollutants to navigable waters?

The exact question presented in the case is:

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

Courts faced with the issue have reached different results, and a recent circuit split among federal courts is what prompted the Supreme Court to take up the issue.

In Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018), and Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018), the Sixth Circuit determined that these types of discharges were not covered by the CWA and dismissed the cases based on the fact that the discharge had occurred to groundwater, which is not a navigable water.  In both Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) amended by 886 F.3d 737 (9th Cir. Mar. 30, 2018), the Fourth and Ninth Circuits extended CWA jurisdiction to discharges that occurred to groundwater where those discharges were conveyed to navigable waters.

In Hawai’i Wildlife Fund, the Ninth Circuit based its holding on three facts: (1) the County discharged pollutants from a point source (i.e. wells), (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) the pollutant levels reaching navigable water are more than de minimis.  Id. At 749 (emphasis added).

EPA, in its amicus brief, argued that the court should apply a “direct hydrological connection” test; however, the Ninth Circuit refused to adopt the EPA’s argument because the agency was reading the word “direct” into the statute where it did not exist.  Id. at Footnote 3.  EPA continues to promote the “direct hydrological connection” test in its briefs filed with the Supreme Court.

It is unclear how the Supreme Court will resolve the issue.

Given the current composition of the Court, many environmentalists are not optimistic about the outcome.

However, the Ninth Circuit made a compelling case for CWA liability to attach in indirect discharge situations by citing the late Antonin Scalia’s plurality opinion in Rapanos v. United States.  In that case, Justice Scalia noted that “the CWA does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” Id. citing Rapanos v. United States, 547 U.S. 715, 743, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (emphasis in original).  Scalia noted that “from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates [the CWA], even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.” Id.  (emphasis in original).  Justice Scalia favorably cited a Second Circuit decision in which “the discharge of manure from point sources onto fields (which were not necessarily point sources themselves) and eventually into navigable waters constituted point source discharges under the CWA.”  Id.

The Ninth Circuit also pointed out that several cases have found CWA liability where pollutants discharged from a point source made their way long distance through the air into navigable waters, such as discharges from airplanes and helicopters.

Hopefully, based on the long history of indirect discharges being prohibited by the CWA and Scalia’s textual reading in Rapanos, the Supreme Court will not buy into the Sixth Circuit’s bright line test that because groundwater is not a navigable water, discharges to groundwater without a permit are not prohibited under the CWA even where it is clear the pollutants will reach navigable waters.

Industry is pushing arguments that adoption of the Ninth Circuit’s test will result in vast regulatory uncertainty and extreme costs to state agencies that administer water permit programs.

Conversely, if the Sixth Circuit’s test is adopted, regulated entities will have a perverse incentive to discharge their pollutants to groundwater to avoid permitting requirements.  This result would clearly contravene the purpose of the CWA to provide Americans with drinkable, fishable, and swimmable waters.

Written by Bob Menees, Staff Attorney at Great Rivers Environmental Law Center