Clean Water Act Regulation Update: Groundwater

By Kyle Weldon, third-year student at Texas A&M University School of Law, and attorney Jim Bradbury PLLC

The jurisdictional reach of the federal government under the Clean Water Act (CWA) continues to be a controversial area, especially since the release of the Obama Administration’s 2015 Clean Water Rule. Beyond the current litigation and expansion of jurisdiction, there is a new question: Is groundwater covered under the CWA?

A CWA permit is needed in one of two situations: (1) Section 402 Permit: where there is a discharge of a pollutant into a “water of the United States” from a point source (such as a pipe from a factory that releases a waste into the Trinity River); and (2) Section 404 Permit: where dredged or fill materials are discharged into “waters of the United States” (where dirt is moved in preparation for a construction project).

Currently, groundwater is not covered under the CWA. However, two recent cases and a new EPA request for comment has opened this issue on whether groundwater could be a link to jurisdiction under the Section 402 Permit program. The key issue is whether or not discharges of pollutants from point sources that reach jurisdictional surface waters via groundwater may be subject to CWA regulation.

In order to provide examples of how this might play out, it may be helpful to look at two recent court cases. In the first case, Kentucky Waterways Alliance v. Kentucky Utilities Co., environmental groups sued a coal-fired power plant for allegedly violating the CWA. The environmental groups argued that leakage from the power plant’s settling ponds (the treatment ponds where the power plant disposed of waste) was contaminating the groundwater, and because that groundwater was “connected” to a navigable stream and the power plant did not have a Section 402 Permit, it was violating the CWA. Here, the Court found in favor of the power plant, holding that “the discharge of pollutants to a navigable water via hydrologically connected groundwater is not subject to the CWA’s permit requirement.” This is how groundwater has historically been viewed under the CWA.

However, contrast that result with the Hawaii Wildlife Fund v. County of Maui case. In this case, a wastewater treatment facility used four injection wells to inject 3-5 million gallons of treated wastewater per day into the ground. The EPAconducted a study and found that a large amount of the treated wastewater was actually traveling through the groundwater and making it to the Pacific Ocean, a navigable waterway. Environmental groups subsequently sued the wastewater facility alleging that it violated the CWA when it injected the wastewater into the groundwater without a permit. Here, the Ninth Circuit Court of Appeals ruled for the environmental groups, holding that the treatment facility was liable under the CWA because (1) the injection wells were a point source, (2) their wastewater was “fairly traceable” from the wells into the Pacific Ocean, and (3) there was a sufficient amount of wastewater that actually reached the Pacific Ocean.

In response to these cases, on Feb. 20 the EPA submitted a request for comments regarding whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater may be subject to CWA regulation. The comment period is open until May 21. Click here for information on how to submit a comment.

While new questions will continue to arise under the CWA, if the Ninth Circuit’s holding is followed in other jurisdictions, or if the EPA decides to regulate groundwater after the comment period ends, the breadth of the CWA may be greatly expanded, increasing the risk of lawsuits under this law.