Courts Hold Clean Water Act Regulates Discharges through Groundwater, as Congress and Regulators Consider Responses

by King & Spalding
Contact

The Ninth Circuit and Fourth Circuit have joined a growing number of lower courts finding that the Clean Water Act (“CWA” or the “Act”) regulates discharges to groundwater that serves as a conduit between a point source and waters of the United States. 

This is a critical issue for energy companies, whose operations can result in releases to groundwater through spills, accidental discharges, and seepage from ash and other retention ponds. Under the so-called “conduit” theory adopted in recent court decisions, these releases are subject to regulation under the CWA and can serve as the basis for citizen-suits when pollutants migrate through groundwater and reach jurisdictional surface waters.

Clients with potential indirect discharges through groundwater should monitor this rapidly developing area closely and seek legal counsel if they have questions regarding the CWA’s applicability to their operations. Plaintiff groups are now squarely focused on this avenue of CWA liability; other appellate courts are poised to address this issue and Supreme Court review is possible; meanwhile, both Congress and state and federal agencies are considering potential responses to these court decisions, with EPA currently soliciting public comments on this issue.

Recent Appellate Decisions Imposing CWA Liability for Indirect Discharges Through Groundwater

Courts agree that the CWA does not regulate groundwater itself, and that an unpermitted discharge alone does not violate the Act. Courts have wrestled, however, with whether CWA liability may be imposed for discharges to groundwater that is hydrologically connected to jurisdictional surface waters.

The Ninth Circuit Adopts the Conduit Theory

In February 2018, the Ninth Circuit expanded CWA liability for indirect discharges through groundwater, holding that discharges to groundwater are actionable if there is a “fairly traceable” connection between the groundwater discharge and pollutants reaching other jurisdictional surface waters. See Hawai'i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The case was the first appellate decision to apply directly the “conduit” theory and impose CWA liability for discharges through groundwater.

In County of Maui, the county owns and operates four injection wells at its municipal wastewater treatment plant, which are the county’s primary means of effluent disposal. Environmental groups sued the county, alleging it violated the CWA because pollutants injected into the wells percolated through groundwater and reached the Pacific Ocean.

The Ninth Circuit concluded that these discharges are regulated under the CWA, and thus the county’s failure to obtain an NPDES permit for them was a violation of the Act. Adopting a new standard of liability for indirect discharges through groundwater, the court held CWA permitting requirements apply where three conditions are met:

(1) pollutants are discharged from a point source, such as an injection well, treatment pond, or any other discernible, confined, or discrete conveyance;

(2) the pollutants “are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water”; and

(3) “the pollutant levels reaching [the] navigable water are more than de minimis.”

The decision, however, left important questions unanswered. For example, the court did not explain what is required to demonstrate that pollutants passing through groundwater are “fairly traceable” to a point source. Nor did the court explain how much pollution is sufficient to impose liability versus the “de minimis” level that is not.

The Fourth Circuit Follows Suit

In April 2018, a divided panel of the Fourth Circuit became the second appellate court in as many months to adopt the conduit theory of liability, finding that the CWA covers discharges to groundwater with a “direct hydrological connection” to jurisdictional surface waters. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., --- F.3d ---, 2018 WL 1748154 (4th Cir. Apr. 12, 2018). In addition, the Fourth Circuit also found that, despite repair of the pipeline that caused the spill, environmental groups had standing to maintain their citizen suit because the continued migration of pollutants from the spill site to jurisdictional waters is an “ongoing violation of the CWA.”

In Kinder Morgan, approximately 369,000 gallons of gasoline accidentally spilled from an underground pipeline near Belton, South Carolina. The pipeline operator repaired the pipeline shortly after the spill; implemented remediation and recovery measures required by state regulators; and recovered 209,000 gallons of gasoline from the spill site. Nevertheless, environmental groups brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the Act.

A divided panel of the Fourth Circuit held that the CWA regulates the pollutants discharged from a point source (e.g., a ruptured pipeline) through groundwater into jurisdictional surface waters. The majority found that the CWA regulates discharges from point sources that reach navigable waters—either directly or indirectly—so long as the discharges are “sufficiently connected to navigable waters” and “the connection between a point source and navigable waters” is “clear.” The majority emphasized, however, that there must be a “traceable discharge” from the point source and cautioned that “traceability in measurable quantities is an important factor in the determination of whether a particular discharge is covered by the CWA,” explaining that this determination “is necessarily fact specific.”

In a second important aspect of the court’s decision, the Fourth Circuit rejected arguments by the pipeline operator that repairing the pipeline and halting the flow of gasoline from the point source barred the environmental groups from bringing a citizen suit. As the majority acknowledged, the CWA does not permit citizen suits for past violations, but rather allows such suits to be brought only for “prospective relief” in cases involving “ongoing violations.” The majority found, however, that repair of the pipeline did not “render the CWA violation wholly past.” Looking to the CWA’s definition of “discharge”—which means “any addition of pollutants to navigable waters from a point source”—the majority reasoned that ongoing seepage of gasoline was continuing to “add” pollutants to jurisdictional waters. And because those pollutants were “from a point source”—that is, they originated from the pipeline—there was a continuing and ongoing discharge in violation of the CWA.

Notably, the majority focused on asserted inadequacies of the operator’s abatement program, discussing at length the role citizen suits play under the CWA in “abat[ing] pollution when the government cannot or will not command compliance.” This underscores the importance of a robust clean-up program in response to spills and suggests that a more thorough abatement program that effectively limited the flow of pollutants to jurisdictional waters might have led to a different result.

The pipeline operator has filed a petition for panel rehearing and rehearing en banc, which is currently pending before the Fourth Circuit. This is potentially significant because a separate panel of the Fourth Circuit in Sierra Club v. Virginia Electric Power Co., No. 17-1895 (4th Cir. filed August 2, 2017), had expressed some skepticism about whether indirect discharges through groundwater are regulated under Section 402 of the CWA. At the same time, the Sixth Circuit is poised to address this issue in Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155 (6th Cir. filed April 12, 2018), a case with extensive amicus involvement that could further cement the conduit theory or create a clear circuit split, perhaps increasing the likelihood of Supreme Court intervention.

EPA’s Request for Comments

Shortly after the Ninth Circuit’s decision in County of Maui, EPA requested comment on whether the agency should clarify its position regarding the regulation of discharges through groundwater and, if so, what form that clarification should take. Specifically, EPA is requesting comment on “the applicability of the CWA NPDES permit program to pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to jurisdictional surface waters.” This includes:

  • Whether “subjecting such releases to CWA permitting is consistent with the text, structure, and purposes of the CWA”;
  • If EPA has authority to regulate discharges through groundwater, whether those discharges “would be better addressed through other federal authorities as opposed to the NPDS permit program”; and
  • Whether “some or all such discharges are addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs.”

In the same request, EPA also seeks comments on whether it should “clarify its previous statements concerning pollutant discharges to groundwater with a direct hydrologic connection to jurisdictional water in order to provide additional certainty for the public and the regulated community.” This could address the CWA’s applicability to hydrologically connected groundwater; define activities that would be regulated beyond direct discharges to jurisdictional surface waters (i.e., placement on the land); and define which connections are sufficiently “direct” to be regulated. Comments are due by May 21, 2018.

Congress Gets Involved

The litigation surrounding this issue has generated interest in Congress. For example, an explanatory statement attached to the Consolidated Appropriations Act of 2018 specifically noted that “regulation of groundwater has remained outside of the Act’s jurisdiction,” but that “[r]ecently, courts have imposed a broad view of CWA liability based on a theory of hydrological connection between groundwater and surface water.” The committees thus “encourage[d EPA] to consider whether it is appropriate to promulgate a rule to clarify that groundwater releases from solid waste units are regulated under RCRA and are not considered point sources, and, that releases of pollutants through groundwater are not subject to regulation as point sources under the CWA.” The committees also directed EPA “to brief the Committees about its findings and any plans for future rulemaking” upon conclusion of the public comment process.

Likewise, the Senate Environment and Public Works Committee recently held hearings on the issue, revealing a sharp partisan divide. Republicans on the committee said CWA liability for groundwater discharges goes far beyond what Congress intended in the Act and suggested the need for a legislative fix. Democrats, in contrast, said the recent court decisions are correct and reflect a “clear” understanding of the statutory text.

What Should Clients Do?

These court decisions will encourage and bolster citizen suits—and potentially other enforcement actions in certain states—seeking to impose liability for groundwater discharges. The law remains unsettled, however, as these issues continue to move through the courts. Clients with potential discharges to groundwater should:

  • Consider their exposure, including whether the receiving groundwater body is isolated and confined or whether it may be hydrologically connected to surface waters constituting waters of the United States; they should seek competent legal counsel to address any questions or to understand how these issues may affect their businesses.
  • Submit formal comments to EPA regarding the appropriate regulation of discharges through groundwater.
  • Seek opportunities to influence the development of the law in this area, both by participating as amici curiae (either directly or indirectly through an industry association) in litigation at the appellate stage and by making their views known to members in Congress.

Written by:

King & Spalding
Contact
more
less

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.