Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.

The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be.

Although I have long thought that it does not make sense to regulate discharges to groundwater under the CWA, I have to confess that my views have evolved.  It’s a very close question, but so long as potential liability is limited in some way, such as by requiring a “direct hydrological connection” between the discharge and the ultimate receiving surface water, it’s hard to argue that the CWA shouldn’t apply.  For me, the dissent poses the key question – one which the majority, as well-reasoned as it is, fails to address:

Can a polluter escape liability under the Clean Water Act (“CWA”) by moving its drainage pipes a few feet from the riverbank?  The Fourth and Ninth Circuits have said no.  In two cases today, the majority says yes.

I’m just having a hard time seeing why the outcome on CWA jurisdiction should differ based on whether the facility owner has a pipe from its coal ash pond discharging pollutants into the river it abuts, or whether the owner instead simply allows pollutants to leach from the pond into the river.

It sure looks as though the Supreme Court may take the opportunity to explain it to me.

One thought on “Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.

  1. Having studied this question for EPA at six field sites for eighteen months in the mid 1980s, I can say with confidence that the answer is entirely site specific. Even a large proximate groundwater discharge can have its chemistry altered by soil attenuation ( for a unique finite period of time) by the time it reaches surface water. So, why not require the discharger of potentially significant types and amounts to document those specifics in its NPDES permit application and let the chips fall accordingly as to if and how it’s groundwater discharges are thereafter permitted?

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