With the recent Ninth Circuit opinion, Hawai'i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018), holding that a NPDES permit is required for contaminated groundwater recharging into surface water, and two other appellate circuits posed to hear argument on similar issues, the USEPA is requesting public comments on this issue by May 21, 2018. Specifically, EPA is requesting comments on whether EPA should review and potentially revise its previous statements concerning the application of the CWA NPDES permit program to pollutant discharges form point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to a jurisdictional surface water. EPA also seeks comment on whether those releases would be better addressed through other federal laws. Finally, EPA seeks comment on whether some or all such releases are addressed adequately though existing state or federal programs.
In Hawai’i Wildlife Fund v County of Maui, environmental groups brought a citizen suit under the Clean Water Act against the City of Maui for discharging treated sanitary effluent water into the ocean. The County had a permit for disposing of treated sanitary effluent into four permitted deep injection wells. A tracer dye test conducted by EPA and others showed that the dye eventually reached the ocean. The Ninth Circuit affirmed the district court ruling, holding that the discharge came from a point source (the well) and that “more than [a] de minimis” amount of pollutants were “fairly traceable from the point source... such that the discharge is the functional equivalent of a discharge into a navigable water.”
Prior cases have held that the NPDES program generally does not apply to migrating groundwater. See for example, Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), where the court held that the Clean Water Act does not assert “authority over ground waters, just because these may be hydrologically connected with surface waters.” However, there are two other appellate courts considering this issue. The Fourth Circuit will hear oral argument on March 21, 2018, in Sierra Club v. Virginia Elec. & Power Co., 247 F. Supp. 3d 753, 758 (E.D. Va. 2017), appeal dismissed, No. 17-1537, 2017 WL 5068149 (4th Cir. July 13, 2017), which involves alleged discharge of arsenic from closed coal ash landfills to a river, though the groundwater. The district court had held that the coal ash landfills were point sources and that the arsenic migration through the ground water constituted an unpermitted discharge. The Sixth Circuit also has a similar case of alleged contaminant migration from a coal ash landfill, Tennessee Clean Water Network v. Tennessee Valley Auth., 273 F. Supp. 3d 775 (M.D. Tenn. 2017).
EPA has not stated that permits are requested for pollutant discharges to groundwater in all cases. EPA’s stated position is that pollutants discharged from point sources that reach jurisdictional surface waters through groundwater that has a direct hydrologic connection may be subject to permits requirements.
It has been difficult for all concerned to parse jurisdictional “waters of the United States” with various methods of establishing hydrological connectivity and its legal consequence. This issue adds yet another layer of complexity and potential for regulation as well as citizen suits in an already challenging area.