If the first two months of 2018 are any indication, events to play out over the rest of the year will have a major impact on what constitutes a “discharge” subject to regulation under Section 402 of the Clean Water Act (CWA). Three cases pending in different federal courts of appeals will address whether releases of pollutants to groundwater hydrologically connected to waters of the United States are subject to the National Pollution Discharge Elimination System (NPDES) permitting requirements of the CWA. In a fourth case, the Ninth Circuit recently weighed in on this issue by articulating a novel, broad rule for determining when a discharge occurs. Spurred on by these developments, and its own admittedly varied positions on this issue over the years, EPA is now seeking comment by May 21 on how to approach this issue.

How the courts and EPA resolve this question will dictate what releases potentially create liability under the CWA. For example, spilling or leaking materials conveyed by groundwater or subsurface flow to surface water may suddenly require NPDES permits. And under the Ninth Circuit’s recent decision, even pollutants washed into navigable waters by sheet flow may be regulated by the CWA. Unlike discrete point source activities traditionally required to obtain NPDES permits, these newly defined “discharges” would be difficult to anticipate—and seek permit coverage for—because these pathways to regulated waters may only be discernible after the fact. The four pending lawsuits represent attempts by citizen plaintiffs in each case to expand NPDES permit liability to unforeseen circumstances.

Nearly every industry has a stake in how EPA and the courts resolve this issue. If EPA and more federal judges follow the Ninth Circuit’s lead by broadly defining discharges regulated by the CWA, many companies and operations will see increased exposure to enforcement actions by citizen groups, EPA, and states authorized to implement the NPDES program. Submitting comments to EPA by May 21 and filing amicus briefs in pending litigation offer timely opportunities to inform how the Agency and judiciary will define the CWA’s reach.

A Broad Ninth Circuit Standard

On February 1, the Ninth Circuit issued a decision holding that the County of Maui violated the CWA by discharging pollutants from wastewater injection wells that release pollutants indirectly to the ocean via groundwater without a NPDES permit. Hawai’i Wildlife Fund v. County of Maui, --- F. 3d ---, 2018 WL 650973 (9th Cir. 2018). The court determined that the CWA does not require pollutants to directly enter a navigable water from a point source in order to be regulated under the statute. 

Rather than limit its holding to hydrologically connected groundwater, the Ninth Circuit articulated a sweeping standard for what constitutes a discharge. Specifically, the Court held that the ability to “trace back” pollutants from a surface water body to specific point sources—such as the county’s wells—is sufficient to establish a discharge from a point source requiring a permit. The court left for another day—and future litigants—precisely how strong the connection between the navigable water and point source must be in order for an unpermitted discharger to be liable. In articulating this new test for triggering NPDES permit applicability, the court rejected EPA’s interpretation that had been offered in a brief filed in support of the citizen plaintiffs.

Any petition for rehearing must be filed by March 1.

A Path to SCOTUS

The breadth of the Ninth Circuit’s holding and the existence of similar cases in three other circuits suggests the U.S. Supreme Court may resolve the extent to which the CWA regulates subsurface releases. Both the Second and Fourth Circuits are hearing appeals from dismissals of citizen suits alleging that subsurface releases from a basement backup and an underground pipe leak, respectively, reached navigable waters. 26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Upstate Forever v. Kinder Morgan Energy Partners LP, No. 16-4003 (4th Cir.) Meanwhile, Sixth Circuit is hearing an appeal from a district court decision holding that groundwater contamination from coal ash ponds requires a NPDES permit if constituents reach CWA jurisdictional waters. Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.) Disagreement among the lower courts augurs well for development of a circuit split and Supreme Court review.

EPA Request for Comment

EPA filed briefs in some of the cases discussed above supporting some of the citizen groups’ legal theories that would trigger NPDES coverage. However, those briefs were filed under the Obama Administration, and it is unclear if current leadership at the EPA would continue these positions. Thus, EPA has not remained on the sidelines while these cases await disposition. On February 20, the Agency issued a Request for Comment on whether requiring permits for pollutant discharges that reach jurisdictional surface waters via groundwater or other subsurface flow is consistent with the text, structure, and purposes of the CWA. The Agency further requested comment on:

• Whether these releases are better addressed through the NPDES program or other federal authorities if EPA does have authority to require permits for them;
• Whether such discharges are already adequately addressed through existing state regulatory programs or other federal regulatory authorities (such as the Safe Drinking Water Act); and
• Whether EPA should clarify its previous statements regarding these discharges to provide certainty for the public and the regulated community.

EPA was spurred to action both by the Ninth Circuit’s ruling and by the need to clarify varying positions that the Agency has taken in regulatory actions over the years that create confusion for the public, permitting authorities and the regulated community.

Comments must be submitted by May 21, 2018. The Request for Comment is available here.

Beveridge & Diamond’s Water practice group develops creative, strategically tailored solutions to challenges that arise under the nation’s clean water laws. The firm’s attorneys have represented clients in a range of industries in project planning as well as in litigation and enforcement proceedings on issues arising from the growing convergence of water supply, use, and quality issues. For more information, please contact the authors.