Key Notes:

  • Sixth Circuit found the CWA does not regulate pollutants that migrate through groundwater to reach navigable surface waters.
  • Court determined the CWA only applies to discharge of pollutants from a point source directly to navigable waters.
  • It thus rejected the “hydrological connection theory” recently embraced by the Fourth and Ninth Circuits, creating a circuit split ripe for U.S. Supreme Court review.

The Sixth Circuit Court of Appeals recently issued two important decisions holding that discharges of polluted groundwater to navigable waters (i.e., streams, rivers, etc.) are not subject to Clean Water Act (CWA) jurisdiction. Tennessee Clean Water Network, et al. v. TVA, No. 17-6155 (6th Cir. 2018); Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co., No. 18-5115, (6th Cir. 2018). This means that such discharges do not require National Pollutant Discharge Elimination System (NPDES) permits, which impose limitations on discharges of pollutants to navigable waters under the CWA. These decisions conform to historical interpretations of CWA jurisdiction but directly conflict with recent decisions in other judicial circuits. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018); Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018). Thus, until the U.S. Supreme Court reconciles these decisions, regulated entities may be faced with potential inconsistent CWA regulation among the circuits.

In Tennessee Clean Water and Kentucky Waterways, environmental groups alleged that coal ash-contaminated groundwater from the defendants’ properties discharged to navigable waters in violation of the CWA. In each case, the defendants stored coal ash wastes mixed with water in unlined ponds, which leached to groundwater that ultimately discharged to navigable waters. Neither defendant contested impacts to groundwater, but both contested that the CWA applied solely due to the hydrological connection between contaminated groundwater and navigable waters.

In its review of both cases, the Sixth Circuit rejected the “hydrological connection theory” and found that the CWA only applies to discharges of pollutants from a point source directly to navigable waters. The court determined that in the text of the CWA, “the phrase ‘discharge of pollutants’ excludes the migration of pollutants through groundwater.” As it explained in Kentucky Waterways, the CWA’s use of “the phrase ‘into’ leaves no room for intermediary mediums to carry the pollutants.” The court also rejected the “point source theory,” establishing that when pollutants are discharged from groundwater to navigable waters, “they are not coming from a point source; they are coming from groundwater which is a nonpoint-source conveyance [and] the CWA has no say over that conduct.”

Judge Clay wrote a dissenting opinion in each case, criticizing the majorities’ rulings for acting contrary to the plain text and history of the CWA. Further, Judge Clay warned that the rulings create a potential scenario whereby a polluter can potentially escape liability under the CWA by moving its drainage pipe a few feet back from a navigable water.

In an attempt to clarify the CWA jurisdictional issues created by these decisions, U.S. EPA on February 20, 2018 proposed a rule to regulate pollutant discharges from point sources to groundwater that reach navigable waters. 83 Fed. Reg. 7126. The comment period closed on May 21, 2018 with nearly 60,000 comments received, but U.S. EPA has yet to issue a final rule.

The Sixth Circuit decisions are also likely to encourage the Supreme Court to weigh in on the issue and/or prompt U.S. EPA to issue a final rule to avoid jurisdictional disputes within the U.S. EPA regions. Parties in Fourth and Ninth Circuit cases (Kinder Morgan and Maui) have petitioned the Supreme Court for certiorari, and it is probable that the environmental groups involved in the Sixth Circuit decisions will do the same.

While the Sixth Circuit decisions support a narrower interpretation of CWA jurisdiction, parties potentially affected by these rulings should closely follow future Supreme Court and/or U.S. EPA actions that could impact or alter these rulings.