On September 24, 2018, the US Court of Appeals for the Sixth Circuit issued two decisions holding that the Clean Water Act (CWA) Section 301’s prohibition on unpermitted discharges does not apply to pollutants that reach surface waters through groundwater. This decision is in contrast to recent decisions reached by the fourth and ninth circuit courts of appeals. As a result, the law on this issue is unsettled and this question will likely reach the Supreme Court in the near future.
In the first case, Kentucky Waterways Alliance v. Kentucky Utilities Co., a group of environmental organizations sued a Kentucky utility for discharging pollutants into groundwater from its coal ash ponds. The environmental groups brought this action in part under the CWA. Claims under the CWA can be brought as long as five elements are met: (1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source. The environmental groups, relying in part on the US Fourth Circuit Court of Appeals’ decision in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al. in April of this year, argued that the polluted groundwater was a navigable water due to its hydrological connection to a surface water. The court disagreed, finding that based on the CWA’s definition of “discharge of a pollutant” and “effluent limitation,” a “discharge” requiring a NPDES permit that is covered by the act requires a point source to introduce a pollutant directly to navigable waters. The court created and applied a two-part test for when a discharge is covered by the CWA: “(1) the pollutant must make its way to a navigable water (2) by virtue of a point-source conveyance.” The court found that groundwater is not a point-source nor a navigable water through its hydrological connection to a surface water because, according to it, the CWA clearly states that discharges must be directly into a navigable water and passing through groundwater is not direct.
The court then applied this same analysis in a subsequent decision Tennessee Clean Water Network v. TVA. As a result of these two decisions, there exists a split in circuit court findings on the issue of whether discharges of pollutants into groundwater can be covered by the Clean Water Act. The cases are now likely to be brought before the US Supreme Court in order to resolve the split and settle the law.