The Clean Water Act regulates discharges of pollutants to waters of the United States. That term is not understood to include groundwater. The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant. The plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.
What’s a creative environmental lawyer to do?
Allege that the groundwater is merely a “conduit” to surface water and, voila, we have a citizen’s suit under the CWA. This is not the first time that plaintiffs have sought to bring discharges to groundwater within the ambit of the CWA. To date, all three courts of appeal that have reviewed the issue have concluded that the CWA does not regulate discharges to groundwater, even if the groundwater ultimately enters surface waters. However, last week, in Sierra Club v. Virginia Electric and Power Company, the Eastern District of Virginia became the seventh district court to hold that such discharges to groundwater are subject to jurisdiction under the CWA.
The court in Sierra Club contains, as far as I can tell, literally no analysis supporting its conclusion; it merely recites that:
Plaintiff has pleaded with sufficient particularity to survive a motion to dismiss….
Sorry, I’m not buying it. I’ll note here that the Massachusetts Department of Environmental Protection – and I’ll bet that MassDEP is not alone among regulatory agencies – takes the position that all groundwater ultimately discharges to surface water. Thus, if the holding in Sierra Club is correct, that would mean that all discharges to groundwater would be subject to CWA jurisdiction – even though groundwater is not a water of the United States.
Don’t you think that, if that were what Congress had intended, it would have said so a little more clearly?