6th Circuit Limits CWA Reach In Potential Circuit Splitting Decision: SCOTUS Requests Administration to Weigh In on Groundwater CWA Issue

6th Circuit Limits CWA Reach In Potential Circuit Splitting Decision: SCOTUS Requests Administration to Weigh In on Groundwater CWA Issue

By E. Jacob Lubarsky

Associate Attorney, Rogers Joseph O’Donnell

In two recent cases involving the regulation of pollutants flowing through groundwater to navigable waters, the Sixth Circuit Court of Appeal ruled on September 24, 2018, that the Clean Water Act (CWA) does not apply to pollutants in such scenarios. This ruling creates an apparent Circuit Court split with previous decisions this year from the Fourth and Ninth Circuit Courts of Appeal on the reach of the CWA when it comes to regulated pollutants reaching navigable waters via groundwater.

Earlier this year, the Ninth (Cty. of Maui v. Hawaii Wildlife Fund, No. 18-260) and Fourth (Kinder Morgan Energy Partners v. Upstate Forever, U.S., No. 18-268) Circuits ruled on the question of whether pollution that travels through groundwater to navigable waters is covered by the CWA. Both courts decided that CWA regulation applies when there is a “direct hydrological connection” between the point source and navigable waters. These decisions both have pending petitions for writs of certiorari before the Supreme Court.

The instant cases from the Sixth Circuit are Kentucky Waterways Alliance et al. v. Kentucky Utilities Co., case number 18-5115, and Tennessee Clean Water Network et al. v. Tennessee Valley Authority, case number 17-6155.

Environmental groups alleged that pollutants from coal ash ponds controlled by the Tennessee Valley Authority (TVA) and the Kentucky Utilities Company had flowed through groundwater into navigable waters, harming the waters in the process. A Sixth Circuit panel delivered split rulings in these two cases. Both cases rested on the question of the extent to which there is a connection between the sources of the pollution and its alleged downstream impact, and the limits of the CWA’s regulatory reach in such situations. In handing down its decision, the panel set forth a bright line rule that limits the CWA’s applicability to direct discharges from “point sources” of pollution to navigable waters.

“Thus, for 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,” Judge Richard F. Suhrheinrich wrote for the majority. However, Judge Eric L. Clay dissented, calling parts of the majority ruling “way off the rails.”

The Sixth Circuit disagreed with the “so-called ‘hydrological connection’ theory” which was upheld by the other two courts. The majority stated that the environmental group plaintiffs relied on the CWA not using the word “directly” in prohibiting “the discharge of pollutants ‘to navigable waters from any point source.’” Thus, a conduit such as groundwater is not covered by the CWA. Instead, the court said the CWA specifies effluent limitations as rules on what may be “discharged from point sources into navigable waters.” The word “into” indicates there has to be a “point of entry.” “Thus, when the pollutants are discharged to the lake, they are not coming from a point source; they are coming from groundwater, which is a nonpoint-source conveyance. The CWA has no say over that conduct,” the opinion stated.

In his opinion, Judge Suhrheinrich stated that if Congress intended the CWA to extend to pollutant discharges in this way, it would have expressly said so in the statute. In his partial dissent, Judge Clay said in Kentucky Utilities that the majority has set up an avenue where a polluter can “escape liability under [the CWA] by moving its drainage pipes a few feet from the riverbank.” He also said that by allowing the CWA to cover this sort of discharge – even if the pollutant travels through groundwater first – promotes “the CWA’s primary purpose” to ensure clean water. “The majority’s approach defeats the CWA’s purpose by opening a gaping regulatory loophole: polluters can avoid CWA liability by discharging their pollutants into groundwater, even if that groundwater flows immediately into a nearby navigable water. This exception has no textual or logical foundation,” Judge Clay said, pointing out that this gives polluters “free rein.” Judge Clay also stated that “Congress did not hide a massive regulatory loophole in its use of the word ‘into.’” Judge Clay’s dissent stated a preference for an alternative standard of proof wherein plaintiffs will have to establish the pathway of the pollutant. He said the majority’s opinion was incorrect in holding that the discharge has to be direct to be violative of the CWA.

The Sixth Circuit also agreed with the TVA in the Tennessee Clean Water Network matter by overturning a lower court’s decision where environmental groups alleged contaminated groundwater which originated from an ash pond complex harmed nearby waters. The lower court had ruled that the TVA had to completely excavate coal ash waste in the complex and move it to a lined site which offered reasonable assurances that it will not discharge pollutants into navigable waters. The panel relied on the same line of reasoning as the Kentucky Utilities case and said that the route of the pollutant through groundwater was a fatal flaw in the environmental group’s main CWA claim.

These recent decisions from the Sixth Circuit take the opposite view of the earlier decisions from the Fourth and Ninth Circuits when it comes to regulating point source pollution under the CWA when that pollution travels through groundwater to navigable waters.

This month, the Supreme Court, citing the previous Ninth and Fourth Circuit cases, requested the U.S. Solicitor General to weigh in on the cases, which look at whether groundwater falls under the purview of federal clean water law. The Court set a deadline of January 4, 2019, for the Solicitor General to submit his views.

It remains to be seen if the Court will take up this important groundwater issue or if this whole exercise will be rendered moot by a potential EPA rulemaking process expected to conclude in 2019. On February 20, 2018, EPA requested comments from interested parties on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” Historically, EPA and the Army Corps of Engineers (“COE”) have not considered groundwater to be “waters of the United States” covered by the CWA. Further, current EPA and COE rules do not specifically address the hydrologic connection question. The EPA comment period closed on May 21, 2018, and experts and legal scholars are unsure whether a new rule or guidance will be issued or whether instead the Solicitor General will take up the issue on behalf of the federal government.

About E. Jacob Lubarsky

Jacob Lubarsky has extensive experience in environmental and complex civil litigation matters. He possesses deep knowledge of California, Washington, and United States environmental legal issues, and has represented clients in matters arising under CERCLA, the Clean Water Act, FIFRA, the Endangered Species Act, Washington’s Model Toxics Control Act, and California’s Proposition 65 and the California Environmental Quality Act.