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Supreme Court Shows Apparent Interest in Reviewing “Hydrologic Connection” Theory of Clean Water Act Liability

The US Supreme Court may be poised to review two 2018 decisions in the Fourth and Ninth Circuits, both of which applied the so-called ‘hydrological connection” theory to extend jurisdiction of the Clean Water Act (“CWA”) to cover pollutants that reach surface waters via groundwater. The Sixth circuit, in addressing the same issue later in 2018, openly criticized the Fourth and Ninth Circuits’ reasoning and flatly declared that “the CWA does not extend liability to pollution that reaches surface waters via groundwater.” The ideological Circuit split is clear and is arguably deepened by two older decisions in the Fifth and Seventh Circuits. The Fifth Circuit found, in 1994, that “neither the Clean Water Act nor the EPA’s definition asserts authority over ground waters, just because these may be hydrologically connected with surface waters.” Similarly, in 2001, the Seventh Circuit determined that groundwater is not “within the class of waters protected by the CWA.”

Significantly, protecting the quality of “navigable waters” is not the only objective of the CWA. Congress specifically provided that another objective of the CWA is “to recognize, preserve, and protect the primary responsibilities of the States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” This, then, is the reason why Congress confined CWA jurisdiction to “navigable waters” and then defined “navigable waters” as “the waters of the United States, including the territorial seas.” The states were meant to “preserve and protect” all other waters within their boundaries. In fact, with respect to the Fourth and Ninth Circuit cases, the states of South Carolina and Hawaii were involved, before the litigation was filed, in remediation, restoration and/or permitting to address conditions and activities that were alleged to be violations of the CWA.

The Fourth and Ninth Circuit cases were both initiated by environmental groups which filed under the citizens’ suit provision of the CWA. In both cases, the plaintiff environmental groups sought to impose actions on defendants which were not being required by the states. Similar CWA citizens suits have been filed in multiple District courts across the country, alleging CWA liability via various iterations of the “hydrological connection” theory. The District Courts have also split over whether the CWA governs the introduction of pollutants to surface waters via groundwater.

In early December 2018, the Supreme Court took the curious step of inviting the US Solicitor General to provide views of the United States on the Fourth and Ninth Circuit cases. This request could well indicate the Supreme Court’s interest in reviewing the Fourth and Ninth Circuit decisions which expanded the reach of the CWA. On January 3, 2019, the Solicitor General filed its brief in response to this request and asked the US Supreme Court to resolve the Circuit Court split on whether the CWA applies when pollutants from a point source reach navigable waters after traveling through groundwater.

Petitions for review of the Fourth and Ninth Circuit decisions were filed with the Supreme Court within a day of each other this past October and briefing was completed in November

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume IX, Number 4


About this Author

Richard E. Morton, Womble Bond Dickinson, Regulatory and environmental lawyer

When clients face multi-million dollar environmental claims and regulatory enforcement challenges they turn to Ric because of his insight, tenacity and ability to untangle even the most complicated matters. Ric counsels companies in federal and state regulatory compliance and dispute resolution. His practice focuses on environmental regulatory compliance, litigation and enforcement defense, as well as toxic tort and products liability litigation.

Ric is particularly experienced in defending clients against bet-the-company damage claims related to chemical exposure; this includes...

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Lisa Rushton, Womble Dickinson Law Firm, Raleigh and Washington DC, Corporate and Environmental Law Attorney

An industry-leading environmental transactions attorney, Lisa Rushton guides corporate clients, including global, multi-national, and local corporations, real estate developers, financial institutions and investment funds on matters relating to federal, state, and local environmental, health and safety laws and regulations and was identified by Chambers as one of the leading environmental practitioners for business transactions.

With substantial experience in matters relating to air and water pollution control laws, solid and hazardous waste management and cleanup, toxic substance control laws and the development of “brownfield” properties, clients rely on Lisa’s guidance and due diligence to understand environmental issues attendant to corporate and real estate transactions, debt and equity financings, public offerings, and bankruptcy proceedings. She routinely assists buyers, sellers, lenders, borrowers, debtors, landlords and tenants with understanding and apportioning environmental liabilities; manages the environmental due diligence process; and drafts and negotiates contractual provisions covering environmental aspects of business and real estate transactions.

Lisa has more than twenty years of experience overseeing the investigation and remediation of site conditions, counseling clients on compliance obligations and the implementation of environmental management systems, and assisting clients in the defense of claims relating to environmental liabilities and allegations of non-compliance.

Todd W. Billmire, environmental litigation lawyer, Womble Bond Dickinson

Todd is a skilled litigator that defends companies in environmental litigation and related administrative and regulatory matters. His clients value his thoughtful problem solving approach to complex environmental matters and his environmental consulting background.

Todd represents a variety multinational manufacturers, energy companies, utilities, and municipalities in environmental litigation and compliance matters. Todd also has counseled and represented individuals and businesses in a wide range of business litigation matters, including class action litigation, securities...

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Bradford De Vore Toxic Torts Lawyer Womble

Toxic torts and high-stakes environmental litigation involve complex legal and technical issues, and multi-million-dollar liability exposure. Such cases can create media concerns and governmental enforcement actions that transcend the individual dispute. Environmental enforcement matters also can present significant business risks, perhaps crippling or even shutting down a company.

When clients face such threats they choose Brad for his and his top-drawer team’s experience and ability to tackle even the most complicated problems.