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
Kay has served on the Board of Directors at Great Rivers Environmental Law Center since 2003. She is a passionate supporter of the environment as well as civil rights, and has been an important leader of Great Rivers from the very start. She has always been close to the Green family, including our founder, Lewis C. Green, and our President, Kathleen Henry. Kay says, “I feel good about what Great Rivers has already accomplished.”
It would be difficult to find someone more passionate than Kay about protecting people from the dangers of nuclear power and radioactive waste. Her basement is an extensive library on nuclear issues, and she is the current President of Beyond Nuclear, a nationa nonprofit organization that works to educate the public about the hazards of nuclear power and nuclear weapons and the need to abandon both to safeguard the future.
Kay and her late husband, Leo A. Drey, were among the founders of the Missouri Coalition for the Environment in 1969 and Kay remains active in that organization as well. They also amassed more than 153,000 acres and donated most of the property to the L-A-D Foundation (another organization they had a role in founding) in 2004. This was the largest such donation for conservation in Missouri history.
We asked Kay a few questions so you can get to know her better:
If you could have any superpower, what would it be? Better writing and violin skills
What is the best (or worst) advice you’ve ever received? I’ve always been told to behave myself – but I don’t pay attention to that 🙂
What is your favorite flower? All of Missouri’s flora!
What was the best vacation you ever went on? Leo and I used to visit Minnesota. We always loved the scenic lakes, watching the beautiful birds, and enjoying the quiet there. But the Ozarks woods and streams remain our favorite.
Missouri’s waterways need a voice, and we are here to serve as that voice!
Henry Robertson, Climate and Energy Director at Great Rivers, filed an opening brief in the Missouri Supreme Court in a suit against the State of Missouri over its passage of House Bill 1713 in (HB 1713), which endangers Missouri’s water quality by upsetting the balance between the public interest and regulated interests at the Clean Water Commission. The Commission enforces the federal Clean Water Law and grants permits to Concentrated Animal Feeding Operations (CAFOs).
Great Rivers represents the Missouri Coalition for the Environment (MCE) and Carolyn Johnson, a resident of Stoddard County on this matter. They challenge the bill because the way the legislature passed it in 2016 was unconstitutional. The bill was originally about “wastewater treatment systems,” so it was misleading to add such a wide-reaching change to the bill as the composition of the Commission. However, the Court ended up dismissing the lawsuit because the plaintiffs did not have “standing” to sue; in particular, none of their tax money was spent on the Commission.
Rachel has served on Great Rivers’ Young Professionals Board since June 2017, assisting with event planning, writing guest columns for the Great Rivers blog, and drafting the Young Professionals Board’s initial by-laws. She joined the Young Professionals Board because she wanted to get more involved in environmental issues and the nonprofit sector. And she knew Great Rivers was a special place because of her time working with us in 2014 as a legal extern.
Outside of Great Rivers, Rachel is an attorney who represents nonprofits and businesses in a wide variety of litigation, compliance, tax controversies, and governance matters. Her first years of practice were spent representing victims injured by dangerous chemicals and pharmaceutical drugs with a leading plaintiffs’ firm downtown. Rachel also volunteers as a pro bono attorney with Volunteer Lawyers and Accountants for the Arts and Legal Services of Eastern of Missouri, where she helps nonprofits obtain and keep tax-exempt status.
When she’s not at work or volunteering? You’ll most likely find Rachel at BARx CrossFit, where Rachel has been a member since 2012. “I consider it my form of a book club.”
Rachel received a technical writing degree from Missouri State University and a law degree from Saint Louis University School of Law. One of her favorite memories from law school is competing in the National Environmental Law Moot Court Competition. She says her time spent interning with Great Rivers helped prepare her for tackling nuanced legal issues.
We asked Rachel a few questions so you can get to know her better:
What book is currently on your nightstand? Atomic Habits by James Clear
What book are you most likely to binge read? Harry Potter
What fictional place would you most like to go? Hogwarts!
What is the best park you have ever visited? Zion National Park
What is your favorite local trail? Glassberg Family Conservation Area in Jefferson County
What always cheers you up when you think about it? Puppies
We invite you to nominate an environmental champion for a Lewis C. Green Environmental Service Award! Individuals and organizations are eligible. Selected recipients will be recognized by Great Rivers Environmental Law Center at the Lewis C. Green Awards Party on Sunday, September 22, 2019 at the Whittemore House.
Nominees should have a demonstrated long-term commitment to preservation of the environment.
All nominations are due by April 1, 2019.
CLICK HERE to submit a nomination today!
A list of past recipients of the Lewis C. Green Environmental Service Award is available here.
On February 12, 2019, Great Rivers Environmental Law Center submitted comments to the U.S. Army Corps of Engineers (Army Corps) on a proposal for implementing Congress’ Water Resources Development Acts of 2018 and 2016. The Water Resources Development Acts authorize a wide variety of water resource projects and policies administered by the Army Corps.
In its comments Great Rivers urged the Army Corps to ensure that federal investments in the nation’s water resources protect and restore the environment, as well as increase the resiliency of people and wildlife to climate change. The increasing storms, floods, and droughts now being brought about by climate change make it more important than ever that the Army Corps use modern and environmentally sound approaches when planning water resources projects.
The comments strongly support the use of natural infrastructure solutions to reduce flood and storm damages, and call for an increased commitment from the Army Corps to using these solutions. Particular recommendations urge the Army Corps to state explicitly that temporary interests in land are not appropriate for restoration, or for natural infrastructure projects, as these temporary interests would negatively impact long-term ecological sustainability. Additionally, Great Rivers encourages the removal of infrastructure projects that no longer serve a federal interest, in order to open up opportunities for ecosystem restoration that will benefit people and wildlife. Further, Great Rivers suggests the Corps be open to considering modifications to a project, up to and including removal of the project entirely, if the change would improve the overall quality of the environment.
Great Rivers’ comments address Army Corps water resources projects across the United States. These projects include restoration, flood control, shoreline protection, and fish and wildlife management.
Finally, to ensure full transparency, Great Rivers proposed that the public be given at least 60 days to review and comment on the scope and impact of water resource development projects. Great Rivers also made suggestions for how the Army Corps could ensure its compliance with requirements imposed under related environmental laws.
A summary of the comments follows, and the full document is available for viewing here.
Summary of comments on “Implementation Guidance for Water Resources Development Acts”
Guest column by Dan McFarlane
As we approach Valentine’s Day, those of us with a significant other or spouse are usually thinking of some sort of gesture or combination of things that will show their love and appreciation for their special someone. But all of us can show some love for the environment, and specifically renewable energy sources, and not just on Valentine’s Day. So in honor of Cupid’s day in the limelight, here are a few reasons why I love that good clean energy.
Have a happy Valentine’s Day and remember that we’re all deserving of love no matter our circumstances!
Written by Dan McFarlane, a member of Great Rivers’ Young Professionals Board
Chalaun Lomax, a senior at Washington University, will be joining Great Rivers as an intern for the spring semester! Originally from West Chester, Ohio, Chalaun is double majoring in history and anthropology. Chalaun has previously completed internships with the United States Court of Appeals for the Sixth Circuit and Washington University’s Office of Alumni and Development. She has also researched gender representation in the United States Foreign Service and has completed an externship at the Legal Services of Eastern Missouri. She is so excited to work with Great Rivers this semester, and we are equally excited to have her working with us!
At Washington University, Chalaun is a staff reporter for the student newspaper, as well as a mentor in Strive for College, an organization that connects aspiring college students with free, one-on-one, online mentoring through the entire college admissions and financial aid application process. As an executive board member of Strive for College, Chalaun co-leads a classroom of high school juniors and guides them through curriculum preparing them for the college application process. She serves as a member of both the Student Conduct Board and the Undergraduate Council and is currently a member of the Campus Interview Team at WU Office of Undergraduate Admissions.
A dedicated group of Franklin County residents spoke yesterday at a public hearing regarding a developer’s request to re-zone land near their homes so he can build a concrete plant. Great Rivers has represented a group of citizens on this matter since 2014.
Landvatter Enterprises, LLC, proposes to build a ready-mix concrete plant on tree-covered hills just 600 feet from the Shaw Nature Reserve in Franklin County. There are dozens of houses and apartments in the area between the Nature Reserve and the proposed plant. The homeowners believe the proposed plant will cause them to breathe in dust, suffer from noise and increased traffic, and believe that the wildlife, fish, birds, flora and fauna in the Nature Reserve will also suffer from the plant.
A handful of residents who could make the hearing at 12:30 pm on a weekday urged the Franklin County Comission to reject the developer’s request for rezoning. They cited the impact a concrete plant would have on their quality of life, interrupting the quiet and tranquil atmosphere of their neighborhood, and concerns that the air pollution from the plant would negatively impact their health. Additionally, they expressed concern over how the plant would harm local wildlife. One resident pointed out that, ironically, the developer’s wife once went on record about a new wedding venue proposed near her own residence and did not want that nuisance in her backyard… and stated he would certainly prefer a wedding venue to the concrete plant if the developer wanted to change his business plan!
Mavis Huff, a longtime homeowner adjacent to the property the developer now owns, said, “People are more important than money – and we were here first.”
Kathleen Henry, President of Great Rivers, told the Commission that “the County doesn’t exist to make one person a profit at the expense of others.”
The County Commission is expected to make a decision within a month to rezone the land allowing a concrete plant or to deny the request for rezoning.
For more information on the history of this fight, you can check out our past blog posts: