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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

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About this Author

Richard Davis, Environmental Lawyer with Beveridge & Diamond Clean Water Act Attorney
Principal

Richard S. Davis has practiced almost exclusively under the federal Clean Water Act and its state analogues since he joined Beveridge & Diamond, P.C. in 1981.  Chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, Mr. Davis helps to direct one of the most innovative and dynamic clean water practices in the United States.  His individual practice includes active representation of major clean water agencies on issues including permitting, TMDLs, CSO and other enforcement defense, and regulatory planning to take advantage of innovations such as water...

202-789-6025
Andrew C. Silton, Beveridge Diamond, Environmental Lawyer,
Associate

Andrew ("Drew") Silton's practice focuses on environmental compliance, regulatory, and complex litigation matters.  He counsels clients across a range of industries. Drew's experience includes:1

  • Defending clients in citizen suits and administrative permitting challenges.

  • Collaborating with in-house and outside technical experts to develop defenses in administrative and civil proceedings.

  • Providing factual and legal analysis in support of responses to state and federal enforcement actions.

  • Filing and briefing administrative appeals before state and federal hearing boards.

(202) 789-6078
Timothy Sullivan, Environmental Lawyer, Beveridge & Diamond Law Firm
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 CERCLA, the Endangered Species Act, and the Clean Water Act. In addition to his work for clients, Mr. Sullivan is also active in state and federal professional activities. He is an adjunct Professor of Law in the...

410-230-1355