As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. My advice to the County of Maui? File a certiorari petition.
It’s fairly certain that groundwater is not a water of the United States. How then, can discharges of groundwater be subject to the Clean Water Act? Good question. Although not solidly grounded in the text of the CWA, I admit I like the approach taken in Tennessee Clean Water Network v. TVA, in which the Court concluded that discharges of groundwater are subject to the CWA:
if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced.
The decision avoids the seemingly ridiculous situation in which the outcome differs if the point source discharges to surface water or if the discharge is to groundwater 10 feet away from the surface water.
The 9th Circuit decision is much broader, finding jurisdiction so long as the “pollutants are fairly traceable from the point source to the navigable water.” The 9th Circuit approach does not require that the connection be “direct” and “immediate.”
The problem with the 9th Circuit approach is demonstrated by regulations promulgated by the Massachusetts Department of Environmental Protection which basically provide that all groundwater should be assumed to discharge to surface water. I’m skeptical that Congress intended discharges to groundwater to be subject to the CWA, in any case where an ultimate discharge to surface waters can be traced back to a point source discharging to groundwater.
As a practical level, I still like the Tennessee Clean Water Network case approach, but I’m not even sure that that interpretation would command a majority at the Supreme Court.