The U.S. EPA’s National Pollutant Discharge Elimination System (“NPDES”) program is the cornerstone of Congressional efforts to reduce water pollution from point source discharges. This year marks the 44th anniversary of the 1972 Clean Water Act Amendments, which first established the NPDES program, but after all these years the scope of the program is still a source of constant litigation. One of the most recent and significant lawsuits to address the scope of the NPDES program is Sierra Club v. Virginia Electric and Power Company [d/b/a Dominion Virginia Power], No. 2:15-cv-00112, which is currently pending in federal court in the Eastern District of Virginia. This case and a series of similar recent lawsuits throughout the country have the potential to greatly expand the NPDES program and the type of discharges that must be permitted.
Background on Sierra Club v. Dominion
Under the NPDES program, discharges of a pollutant from a point source to navigable waters are prohibited except in conformance with a permit. Dominion addresses two of those key concepts:
- Are discharges to groundwater subject to the Clean Water Act if pollutants migrate into “navigable waters”?
- Can groundwater seeps from impounded waters and landfills be classified as “point sources”?
Sierra Club’s complaint, filed March 19, 2015, alleged that Dominion’s Chesapeake Energy Center (“CEC”) in Virginia was contaminating groundwater and surface water in violation of the Clean Water Act and CEC’s NPDES permit. Specifically, Sierra Club alleged that coal combustion residual (“CCR”) surface impoundments and landfills were point sources and that groundwater seeps from those facilities were discharging pollutants to the Elizabeth River (a navigable water) through a hydrological connection.
Dominion disputed Sierra Club’s claim that its CCR facilities were contaminating the Elizabeth River, but in any event, Dominion argued it was operating in compliance with its NPDES permit, its landfill permit and the Clean Water Act and that there was no unpermitted “point source” discharge to a “navigable water.” Moreover, the Virginia Department of Environmental Quality agreed with Dominion that it had no unpermitted discharges.
Are Discharges to Groundwater Subject to the NPDES Program?
Neither Congress nor the EPA has defined “navigable waters” or “waters of the United States” to include groundwater. Even the EPA’s recent controversial “Waters of the US” rulemaking, which has been stayed by the 6th Circuit, excluded “[g]roundwater, including groundwater drained through subsurface drainage systems” from being navigable waters. 40 C.F.R. § 401.11 (2)(iv).
Dominion’s first response to Sierra Club’s complaint was to file a motion to dismiss, arguing that, among other things, discharges to groundwater were excluded from the NPDES program because they were not navigable waters. The court denied that motion, holding, among other things, that “[f]ederal courts are split on the issue of whether groundwater that is hydrologically connected to surface water is covered under the Clean Water Act.” The court explained that the 1st, 5th and 7th Circuits have all held “that the Clean Water Act does not cover discharges which enter surface waters through groundwater.” But several district courts, primarily, but not exclusively, in Western states, have held the NPDES program does regulate certain discharges to groundwater. In fact, in 2015, federal district courts in Hawaii and the Middle District of North Carolina found that the Clean Water Act governed certain groundwater discharges.
The following chart provides a general overview of some of the key cases throughout the country addressing whether the Clean Water Act regulates groundwater discharges that enter surface waters.
Even if the Dominion court finds that the Clean Water Act governs discharges to groundwater that are hydrologically connected to surface waters, there must also be a point source for the NPDES program to apply. The Clean Water Act defines a point source as “[a]ny discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container ... from which pollutants are or may be discharged.” 33 U.S. Code § 1362(14). Interestingly, Sierra Club did not argue that the alleged groundwater seeps from CEC were themselves point sources, but rather the surface impoundments and landfills were point sources because they acted as “containers” for CCR. In response, Dominion explained that the impoundments and landfills are designed to hold or keep materials — not convey them like a pipe, ditch or channel. Dominion further argued that the “‘conveyance’ is the conduit between a source of pollutants (i.e., the ponds and landfill) and the receiving waterbody,” but the source of the pollutants is not the conveyance itself. It remains to be seen how the court will decide this issue.
The Dominion court held a four-day bench trial in June of this year, and the court could issue a decision any day now. Although the court’s decision would not apply in other jurisdictions, the outcome will be important to watch for several reasons:
- This is not an isolated lawsuit. There have been several other citizen suits in just the last few years alleging that discharges to groundwater have violated the Clean Water Act. It is entirely conceivable that there will be more citizen suits addressing this issue in the near future.
- The 4th Circuit has not yet addressed whether the NPDES program governs groundwater seeps. And if the court’s ultimate decision in Dominion is appealed to the 4th Circuit, the 4th Circuit could create a split with the other Courts of Appeals that only the U.S. Supreme Court could resolve.
- Although the Dominion lawsuit involves disposal facilities for CCR, the principles at issue could easily be applied to other types of landfills, lagoons and surface impoundments that many industrial operations utilize.