There have been five circuit court decisions in 2018 addressing the application of the Clean Water Act (CWA) to discharges reaching navigable waters through groundwater. The year started with a decision by the Ninth Circuit which, addressing discharges through groundwater from an injection well, held that where there was a direct hydraulic connection between the point source and the navigable water, the fact that the discharge traveled through groundwater from the point source did not preclude CWA liability. Hawai’i Wildlife Fund v. County of Maui. That decision was followed a similar holding by the Fourth Circuit in a case involving discharge from a broken pipeline through groundwater to a nearby creek. Upstate Forever v. Kinder Morgan Energy Partners.
Then in September, three appellate decisions addressing discharges from coal ash ponds ruled in each instance that there was no CWA violation. Sierra Club v. Virginia Electric & Power Company (“VEPCO”), a subsequent Fourth Circuit decision, affirmed in part and reversed in part a district court decision finding VEPCO liable for unpermitted discharges to navigable waters through groundwater from a coal ash landfill and settling ponds. VEPCO had not challenged the lower court’s finding that there was a direct hydraulic connection to the navigable water through groundwater, and the court accepted without discussion that such a connection was sufficient to establish liability under the Clean Water Act, based on the earlier Fourth Circuit decision in Upstate Forever. However, the court went on to reverse the district court’s finding of CWA liability on a different basis, concluding that the CWA requires discharge from a “point source” – defined as a ”discernible, confined and discrete conveyance,” and that as so defined, a settling pond (and implicitly, a landfill) is not a device for conveyance, and hence not a “point source.”
Then, on September 24, 2018, the Sixth Circuit issued two opinions – Tennessee Clean Water Network v. TVA and Kentucky Waterways Alliance et al v. Kentucky Utilities Company -- in citizen suits addressing coal ash ponds, holding categorically in both cases that the CWA covered only direct discharges from point sources to navigable waters, with no movement through an intervening medium, rejecting the “direct hydraulic connection” rationale. Both opinions also noted that they doubted the existence of a point source in the case of the coal ash ponds, quoting at length the ruling by the Fourth Circuit in Sierra Club.
This battle has been a long time coming, as it has become more and more apparent that control of the standard “point sources” is far from sufficient to produce clean rivers and streams. Over the years, courts addressing the application of the CWA have maneuvered along the spectrum from requiring clear conduits to accepting hydraulic connections. The issue of conflicting RCRA and CWA application is a red herring. As the dissents in the Sixth Circuit opinions point out, the rationale in the majority opinions would extend far beyond discharges from coal ash plants that are already regulated under RCRA. Congressional action is a pipe dream. But with these five decisions the stage appears set for a Supreme Court resolution. Let’s just hope that the result is actually a resolution, not another Rapanos.