Under the Clean Water Act
The Clean Water Act (CWA or the Act) expressly forbids the discharge of pollutants without a permit. The term “discharge of pollutants” means the “addition of any pollutant to navigable waters from any point source.” Any discharge of pollutants must be covered under a federal or state discharge permit (e.g., a U.S. Army Corps of Engineers permit for the discharge of dredged and fill material or a National Pollution Discharge Elimination System (NPDES) permit for the discharge of other pollutants); otherwise the discharge would be in violation of the CWA. If it does not constitute a discharge of pollutants, then the release does not violate the CWA.
A flurry of recent cases around the United States has created a circuit split over whether the CWA governs discharges to groundwater that eventually add pollutants to navigable waters. However, there are a few points these courts seem to agree on.
Groundwater: A Navigable Water or a Point Source Itself?
First, Circuit Courts agree that groundwater is not, itself, a navigable water under the CWA, which is defined as “the waters of the United States” (WOTUS). If groundwater were a WOTUS under the CWA, then any point source discharge to groundwater would be regulated under the CWA, and such discharges of pollutants would require a permit. However, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 641 (4th Cir. Apr. 12, 2018), the Fourth Circuit recently made clear that the CWA does not cover all discharges to groundwater. In Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) amended by 886 F.3d 737 (9th Cir. Mar. 30, 2018), the Ninth Circuit also rejected the idea that all point source discharges to groundwater are covered under the CWA, citing other Circuit cases, including Rice v. Harken Expl. Co., 250 F.3d 264, 271 (5th Cir. 2001). In Rice, the Fifth Circuit stated that “the CWA definition of ‘navigable waters’ . . . is not so expansive as to include groundwater within the class of waters protected by the CWA.”
Second, Circuit Courts have consistently held that that groundwater is not a point source under the CWA, which is defined as “any discernible, confined and discrete conveyance.” The Sixth Circuit, in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, at *6 (6th Cir. Sept. 24, 2018), explained that groundwater itself is not a point source because it is not discernible, confined or discrete. “[W]hile dye traces can roughly and occasionally track the flow of groundwater, they do not render groundwater ‘discernible.’” Even the Ninth Circuit agreed in Hawai’i Wildlife Fund in rejecting the proposition that groundwater is a point source for purposes of the CWA. See 886 F.3d at 746 (characterizing groundwater as a “nonpoint source”).
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