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Pair of Clean Water Act Decisions Creates Circuit Split over Discharges to Groundwater

On Monday, divided panels of the U.S. Court of Appeals for the Sixth Circuit issued a pair of decisions holding that Clean Water Act (“CWA”) Section 301’s prohibition on unpermitted discharges does not apply to pollutants that reach surface waters through groundwater.  In Kentucky Waterways Alliance v. Kentucky Utilities Co., No. 18-5115, and Tennessee Clean Water Network v. TVA, No. 17-6155, the Sixth Circuit became the third appellate court this year to decide whether discharges to surface waters through groundwater require National Pollution Discharge Elimination System (“NPDES”) permits.  Unlike the Fourth and Ninth Circuits, the Sixth Circuit rejected the theory that pollutants reaching navigable waters after passing through groundwater (or soil) are discharges that require NPDES permits.

In both Kentucky Waterways and TVA, environmental groups brought citizen suits alleging that power plant owners violated the CWA by failing to obtain NPDES permits for releases of pollutants from coal ash ponds into groundwater that subsequently migrated into surface waters.  In Kentucky Waterways, the district court granted a motion to dismiss, holding that the releases to groundwater were not “discharges” regulated by the CWA.  The district court in TVA concluded, after a bench trial, TVA’s coal ash ponds were illegally discharging to nearby surface waters through hydrologically connected groundwater.

Requiring Continuity of Point Source Conveyances

In Kentucky Waterways, the panel majority first rejected the plaintiffs’ theory that groundwater itself is a “point source” capable of discharging to navigable waters.  The majority explained that groundwater is too diffuse and difficult to trace with precision necessary to make it a “discernible, defined, and discrete conveyance.”  33 U.S.C. § 1362(14).  As a result, neither groundwater nor the medium through which it flows (e.g., karst geology) is a point source subject to CWA Section 301.  Kentucky Waterways, slip op. at 10-11.

The majority then found that a release to groundwater is not a discharge, even if that groundwater is hydrologically connected to navigable waters.  The opinion relied on the CWA’s definitions of “discharge of a pollutant” and “effluent limitation” to conclude that a “discharge” requiring a NPDES permit requires a point source to introduce a pollutant directly to navigable waters.  See id. at 11-12.  Thus, the majority articulated a two-part test for when a discharge occurs:  “(1) the pollutant must make its way to a navigable water (2) by virtue of a point-source conveyance.”  Id. at 12.  Releases through a non-point source intermediary, like groundwater, fail to meet this test.

The panel majority in TVA applied the reasoning in Kentucky Waterways to reach the same conclusion.  Notwithstanding the district court’s findings that the groundwater at issue was hydrologically connected to nearby surface waters, the coal ash ponds’ releases to groundwater were not discharges that required NPDES permits.  See TVA, slip op. at 9-14.

Creation of a Circuit Split

The Sixth Circuit’s decisions on Monday increase the odds that the U.S. Supreme Court will resolve the question of whether the CWA requires NPDES permits for “indirect” discharges.  Petitions for certiorari seeking review of the Fourth and Ninth Circuit’s decisions on this issue are currently pending.  While both petitions argued that a circuit split existed, in the decisions in Kentucky Waterways and TVA, the Sixth Circuit expressly stated its disagreement with decisions of the Fourth and Ninth Circuits on this important issue.  See Kentucky Waterways, slip op. at 10 (“we disagree with the decisions of our sister circuits…”).  As a result, one can expect further litigation, potential for the U.S. Supreme Court to resolve the issue—and, for now, uncertainty—over what releases of pollutants require NPDES permits.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 268

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About this Author

Richard S. Davis Clean Water Act Attorney Beveridge & Diamond Washington, DC
Principal

Richard uses his 40 years of Clean Water Act experience to find cost-effective solutions for the complex regulatory challenges that his business clients face.

Since joining Beveridge & Diamond in 1981, Richard has practiced almost exclusively under the federal Clean Water Act and its state analogues, chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, and helping direct one of the nation’s most innovative and dynamic clean water practices.

Richard has represented individual industrial dischargers and industry groups, as well as local...

202-789-6025
Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies in the renewable energy, information technology, oil and gas, and transportation sectors.

Drew also plays an active role in the firm's pesticide data compensation practice. He has brought multiple arbitrations to obtain compensation from competitors who have relied on clients' pesticide data to obtain registrations. Drew has also represented members of the pesticide industry in high profile administrative law litigation impacting the regulation and registration of pesticide products.

Andrew’s experience includes:

  • Counseling data center operators on a variety of obligations under the Clean Water Act relating to the discharge of wastewater and storage of petroleum products.
  • Assisting clients with the negotiation and renewal of NPDES permits.
  • Authoring amicus briefs in cases impacting the scope of the Clean Water Act and the regulation of pesticide products.
  • Scoping and executing comprehensive compliance audits.
  • Defending clients in cases of first impression brought under the Clean Water Act.
  • Defending clients in toxic tort litigation.
  • Challenging local ordinances on preemption grounds.
  • Defending clients in state and federal enforcement actions, including the negotiation of consent orders and consent decrees.

Prior to entering private practice, Drew gained experience working for the government and tackling emerging issues relating to adaptation to climate change. Immediately after graduating from Georgetown University Law Center, Drew served as a special law clerk at the United States Environmental Protection Agency (EPA) in Philadelphia, where he prepared cost recovery and enforcement actions under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA).

202-789-6078
Timothy M. Sullivan Environmental & Natural Resources Litigation Attorney Beveridge & Diamond Baltimore, MD
Office Managing Principal

Tim Sullivan’s practice focuses primarily on environmental and natural resources litigation before federal and state courts and adjudicatory bodies.

He represents and advises public and private clients in regulatory, litigation, and other matters involving many federal and state environmental and natural resources laws, with a particular emphasis on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Clean Water Act. Tim is the Managing Principal of Beveridge & Diamond's Baltimore office. 

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