2019 Vermont Law Top 10 Environmental Watch List

Groundwater Pollution: A Circuit Split Inviting Supreme Court Review

Several polluters have recently filed petitions for certiorari asking the U.S. Supreme Court to resolve an important question about how the federal Clean Water Act (CWA) applies to groundwater. Under the act’s National Pollution Discharge Elimination System (NPDES), polluters are required to obtain permits from federal or state officials before they can lawfully discharge pollutants into the nation’s surface waters. The specific question the Supreme Court is being asked to address now is whether the NPDES permit requirement applies to pollution injected into groundwater that migrates underground to nearby surface waters.

Judging by the extent of the controversy this question has created in the lower federal courts, it appears very likely that the Supreme Court will grant the petitions for certiorari, meaning that sometime next year the court may well issue a major decision on the scope of the Clean Water Act.

09_Groundwater PollutionThe dispute involves a tricky question of statutory construction. Section 402 of the CWA requires a polluter to obtain “a permit for the discharge of any pollutant.” The act defines a discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.” The act defines “navigable waters” to mean “the waters of the United States.”

While the term “waters of the United States” has given rise to considerable, continuing controversy, it is clear the term encompasses more than the traditional navigable waters, including some wetlands, but not groundwater. Finally, the term “point source” means “any discernible, confined and discrete conveyance,” including but not limited to pipes, ditches, channels, tunnels, conduits, wells and other similar conveyances.

If a pipe from a factory alongside a major river deposits pollution directly into the stream, there is no question there has been a “discharge of a pollutant” subject to the NPDES permitting requirement. But the question is more difficult if the factory disposes of the pollution down a well into the groundwater and the pollution then travels underground to reach some component of “the waters of the United States.” Focusing on the source of the pollution, both the pipe and well meet the definition of a “point source,” and in both cases the pollution affecting the surface waters literally comes “from” the point source. But has there been an “addition” to the waters of the United States “from” the point source if the pollution only reached jurisdictional surface waters after travelling some distance underground? It is fair to say that reasonable minds can disagree on whether Section 402 permitting applies in this situation.

The two cases in which petitions forcertiorariare pending in the Supreme Court illustrate one way to resolve this debate. In Upstate Forever v. Kinder Morgan Energy Partners, the U.S. Court of Appeals for the Fourth Circuit addressed whether Kinder Morgan was responsible for an unpermitted discharge in violation of the CWA when one of its underground pipelines ruptured and gasoline seeped through the ground into a nearby waterway. The court ruled that the unpermitted discharge did violate the CWA, reasoning that, under the “plain meaning” of the statute, “a point source is the starting point or cause of a discharge under the CWA, but the starting point need not also convey the discharge directly to navigable waters.” (By contrast, the dissenting member of the panel argued that, for there to be an “addition” within the meaning of the CWA, “a point source must introduce the pollutant into navigable waters.”) The court did not suggest that every discharge to groundwater would trigger the CWA permitting requirement; however, at a minimum, the court said, the plaintiff would need to show “a direct hydrological connection” between groundwater and waters of the United States.

Similarly, in Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit ruled that the NPDES permitting requirement applied to a county’s disposal of wastewater by injecting it underground because the pollution subsequently emerged in nearby ocean waters. The court rejected the county’s position that “the point source itself must convey the pollution directly into the navigable waters,” ruling that an “indirect discharge from a point source” suffices for CWA liability to attach. Adopting a slightly different test than the Fourth Circuit, the Ninth Circuit said for the permitting requirement to apply “the pollutants must be fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable waters.”

On the other hand, in two 2018 rulings, Kentucky Waterways Alliance v. Kentucky Utilities Co.and Tennessee Clean Water Network v. Tennessee Valley Authority, the U.S. Court of Appeals for the Sixth Circuit disagreed with the rulings of the Fourth and Ninth Circuit. Both cases involved operators of coal-fired power plants who deposited coal ash in man-made ponds, from which polluted water flowed underground to nearby streams. The Sixth Circuit rejected the claims that the ponds were subject to CWA permitting, reasoning that “for a point source to discharge into navigable waters, it must dump directly into the navigable waters.” The sharp disagreement among the lower courts about how to read the CWA seems like the kind of straightforward split that will likely get the Supreme Court’s attention.

If the Supreme Court grants review, broader questions of environmental policy will also be front and center. Advocates of the narrow reading of the CWA emphasize the provision of the act indicating that Congress intended to “protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use … of land and water resources.”   Under this view, the fact that a narrow reading of the statute will leave a major source of water pollution uncontrolled by the CWA is simply a natural and unremarkable result of Congress’s intent to preserve a major independent role for the states in addressing (or choosing not to address) certain water quality issues.

Under the opposing view, leaving indirect discharges to surface waters unregulated under the CWA would not only create a gap in the act’s coverage but create a perverse incentive for polluters to take advantage of what might be dubbed the “groundwater loophole.” As stated by the Fourth Circuit, “if the presence of a short distance of soil and ground water of soil and ground water were enough to defeat a claim, polluters easily could avoid liability under the CWA by ensuring that all discharges pass through soil and groundwater before reaching navigable waters. Such an outcome would greatly undermine the purpose of the Act.”

Because the U.S. government is not a party to either the Fourth or Ninth Circuit cases, it is hardly surprising that on Dec. 3, the Supreme Court issued an order inviting the solicitor general to express the views of the United States on whether the court should grant the petitions. Given the Trump administration’s general preference for delegating environmental protection responsibilities to the states, it seems likely that the solicitor general will favor granting certiorari, converting the already high likelihood that the court will do so into a virtual certainty.