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  • August 20, 2019

    Circuit Split: Discharges through Groundwater Under the Clean Water Act

    The Circuit Courts of Appeal are split on whether the Clean Water Act regulates pollutants that travel through groundwater before reaching navigable waters. Ameya Gehi delves into key case law and examine both the historical and future impact of this split.

    Ameya Gehi

    “Except as in compliance with (the Clean Water Act), the discharge of any pollutant by any person shall be unlawful.”1

    Although this definition of a Clean Water Act (CWA) violation seems broad and straightforward, it is less clear that the CWA regulates indirect discharges, like pollutants that travel through groundwater.

    Regulation of groundwater pollution is traditionally left to state government as the CWA focuses on point source pollution of the nation’s surface waters.

    The CWA Regulates Indirect Discharges: Maui

    In Hawai’i Wildlife Fund v. Maui, the Ninth Circuit held that CWA violations occur when “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.”2

    In Maui, pollutants traveled through groundwater in wells before reaching the Pacific Ocean. The Ninth Circuit found a CWA violation because:

    • the pollutant itself was released from the [well], a point source,3 and
    • there was a direct connection between the [well] and the navigable water.4

    First, the court held that wells are point sources because wells are “discernible, confined, and discrete conveyances,” and are identifiable to a discrete source.5

    Ameya Gehi Ameya Gehi, University of Michigan Class of 2021, served as a summer 2019 law clerk at Midwest Environmental Advocates, Madison.

    Second, discharges into navigable waters do not have to be direct, but rather the pollution must come from a point source that has a connection to navigable waters, like the Maui wells and the Pacific Ocean. “[T]he pollution must come “from a discernible conveyance” as opposed to some unidentifiable point of discharge.”6 Congress limited the CWA’s jurisdiction to point sources to target identifiable sources of pollution.7

    To placate concerns about floodgates and expanded liability, the Ninth Circuit did not uphold the district court’s holding that CWA violations occur “when pollutants reach navigable water, regardless of how they get there.”8

    The court relied on Justice Scalia’s opinion in Rapanos v. United States,9 which held 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.’”10

    Justice Scalia also noted 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.”11

    Rapanos was a plurality opinion, which raises concerns about its precedential authority. However, “no Justice disagreed with the plurality opinion that the CWA holds liable those who discharge a pollutant from a defined point source to the ocean.”12

    Affirming Maui: Upstate Forever

    In Upstate Forever v. Kinder Morgan Energy Partners, the Fourth Circuit held that the CWA regulates pollutants that travel through groundwater before reaching navigable waters if a “direct hydrological connection between groundwater and navigable waters” exists.13

    Similar to Maui, the court in Upstate Forever relied on Rapanos to hold that “the CWA's definition of a discharge of a pollutant does not require a discharge directly to navigable waters, neither does [the CWA] require a discharge directly from a point source.14 Furthermore, the CWA’s text omits “direct” to qualify “the discharge of any pollutant.”15

    Moreover, the court sought to prevent loop-holing. The CWA’s purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”16 Not affirming Maui would undermine the CWA’s purpose by allowing polluters to escape CWA liability by routing their discharges so that they travel through groundwater before reaching navigable waters.

    Judge Floyd dissented and would have held there was no CWA violation because there was no ongoing addition of pollutants from a point source into navigable waters. Instead, “migration of pollutants through the natural movements of groundwater amounts to nonpoint source pollution,” which the CWA does not regulate.17

    Circuit Split: Kentucky Waterways

    The Sixth Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Company disagreed with the Ninth and Fourth Circuits.18 The court held that, for CWA violations,

    1) “the pollutant must make its way to a navigable water;"
    2) “by virtue of a point-source conveyance.”19

    In Kentucky Waterways, arsenic pollutants from coal ash ponds leached into groundwater before reaching navigable waters.

    There was no CWA violation because first, pollutants must directly come from point sources, rejecting the direct connection theory. The court relied on the CWA’s definition of effluent limitations: “discharge[s] from point sources into navigable waters.”20 The court reasoned that “[t]he term ‘into’ indicates directness … refer[ing] to a point of entry.”21 “[F]or a point source to discharge into navigable waters, it must dump directly into those navigable waters – the phrase ‘into’ leaves no room for intermediary mediums to carry the pollutants.”22

    Second, the court held that groundwater was a nonpoint source because it is a “diffuse medium,” not confined, discrete, or discernible.23

    Third, the court interpreted Rapanos to hold that “the absence of the word ‘directly’ from [CWA] … explain[ed] that pollutants which travel through multiple point sources before discharging into navigable waters are still covered by the CWA.”24 Rapanos did not concern pollutants that travel through nonpoint source intermediaries.

    For three main reasons, Judge Clay dissented in part and would have held that “the CWA prohibits all pollution that reaches navigable waters ‘by means of ground water with a direct hydrological connection to such navigable waters.’”25

    First, the majority mistakenly limited the CWA’s jurisdiction to “effluent limitations” because the CWA’s plain language shows that “Congress thus authorized citizen suits to prevent the “addition of any pollutant to navigable waters from any point source.”26 The case involved a citizen suit for violations of “effluent standard or limitation … a term of art [that] is wholly distinct from the term ‘effluent limitation.’”27

    Also, Judge Clay disagreed with the majority’s interpretation of ‘into’ to qualify discharges as direct discharges because “Congress did not hide a massive regulatory loophole in its use of the word ‘into.’”28 Like Upstate Forever, he sought to prevent loop-holing because “[b]ased on the majority's logic, polluters are free to add pollutants to navigable waters so long as the pollutants travel through any kind of intermediate medium.”29

    Second, Judge Clay disagreed with the majority’s holding that ash ponds are not point sources. The CWA lists ditches, wells, containers, and vessels in the “point source” definition. Employing ejusdem generis, “[t]he common denominator between wells, containers, ditches, and vessels is that each is a man-made, defined area where liquid collects … [which includes] man-made coal ash ponds. The interpretation that ‘a container can be a point source only if it is in the act of conveying something’ … ignor[es] that the statutory definition includes ‘any ... container ... from which pollutants are or may be discharged.’”30 This raises another issue: whether a point source can be stationery or must be in the act of conveyance.

    Third, Judge Clay disagreed with the majority’s interpretation of Rapanos because “the legal issue is the same: whether the CWA applies to pollution that travels from a point source to navigable waters through a complex pathway,” to which Rapanos answered yes.31 He noted that Rapanos favorably cited a case that held the CWA regulates pollution that traveled across fields before reaching navigable waters.

    Seventh Circuit Analysis

    The Seventh Circuit held in 1994 that the CWA does not regulate groundwater discharges that reach jurisdictional waters: “Neither the Clean Water Act nor the EPA's definition asserts authority over ground waters, just because these may be hydrologically connected with surface waters.”32

    A Wisconsin Court of Appeals explicitly upheld Oconomowoc in Maple Leaf Farms v. State Department of Natural Resources.33 The Central District of Illinois, which sits in the Seventh Circuit, more recently applied Oconomowoc in 2018 to hold that the CWA does not regulate groundwater discharges into navigable waters.34

    Looking Forward

    Without clear redress from the CWA to address groundwater pollution issues, individuals and groups will continue to pursue other legal avenues to potential relief.

    For example, the pollution at issue in Kentucky Waterways was coal combustion residuals (CCRs), which is a contaminant regulated by the Resource Conservation and Recovery Act (RCRA). This act exempts pollution that the CWA regulates. The Sixth Circuit might have been comfortable holding that the CWA did not regulate coal ash pollution because the RCRA regulated it.

    Nevertheless, Judge Clay’s dissent from Kentucky Waterways noted that the RCRA and CWA simultaneously regulate CCRs, stating that “RCRA regulates the way polluters store CCR, and the CWA kicks in the moment CCR enters a navigable waterway.”35

    More to Come

    In the meantime, decisions await from the U.S. Supreme Court, which granted Maui’s petition for certiorari on whether the CWA regulates pollutants that travel through groundwater before reaching navigable waters.

    Oral arguments will take place Nov. 6, 2019. It remains to be seen whether the Supreme Court will definitively resolve this circuit court split, and settle longstanding debate over CWA liability for groundwater pollution.


    1 33 U.S.C. § 1311(a).

    2 886 F.3d 737 at 749 (9th Cir. 2018)

    3 Id. at 746.

    4 Id. at 749.

    5 33 U.S.C. § 1363(14).

    6 Maui, 886 F.3d at 746 (citations omitted).

    7See U.S. v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993).

    8 Maui, 886 F.3d at 749 (citations omitted).

    9 547 U.S. 715, 126 S. Ct. 2208 (2006).

    10 Maui, 886 F.3d. at 748, quoting Rapanos, 547 U.S. at 743.

    11 Rapanos, 547 U.S. at 743.

    12 Maui, 886 F.3d at 748.

    13 887 F.3d 637, 651 (4th Cir. 2018).

    14 Upstate Forever, 887 F.3d at 650 (internal citations omitted).

    15 Id. at 651.

    16 33 U.S.C. § 1251(a).

    17 Upstate Forever, 887 F.3d at 662.

    18 Kentucky Waterways Alliance v. Kentucky Utilities Company, 905 F.3d 925 (6th Cir. 2018).

    19 Id. at 934.

    20 Id.

    21 Id.

    22 Id.

    23 Id. at 933.

    24 Id. at 936.

    25 Id. at 947.

    26 Id. at 940.

    27 Id. at 943.

    28 Id.

    29 Id. at 942.

    30 Id. at 942, note 2.

    31 Id. at 944.

    32 Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).

    33 2001 WI App. 170, 247 Wis. 2d. 96, 633 N.W.2d 720.

    34 Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 350 F. Supp. 3d 697, 705 (C.D. Ill. 2018).

    35 Kentucky Waterways, 905 F.3d at 945.


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