What’s The Point (Source)?

In response to a split in the federal circuit courts of appeals and after a long history of inconsistent guidance, the U.S. Environmental Protection Agency (EPA) recently announced that it is seeking comments by May 21, 2018 on whether a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit is required for discharges to groundwater that eventually reach surface waters. Every court that has examined this issue has noted the lack of clear guidance in the CWA’s legislative history and a divergence of approaches between various courts of appeals and even within some circuits.

The resulting uncertainty has exposed a wide variety of private and public entities, including such diverse entities as pipelines, manufacturing facilities, municipalities, and dairy farms, to CWA citizen suit litigation and, for some defendants, to potentially significant penalties. In each case, planned activities (such as underground injection of wastes) or unplanned conditions (such as releases causing groundwater contamination) may lead to the migration of pollutants that reach rivers, streams or other surface “waters of the United States.” The question is whether these indirect discharges are subject to the CWA’s NPDES permit program and discharge regulatory regime. Expanding the NPDES permitting program to regulate these types of discharges would affect facilities that have not been subject to regulation under the CWA and it could expand the permitting burden and range of regulated discharges for facilities that currently hold NPDES permits.

Background
The NPDES permitting program regulates the discharge of pollutants through “point sources” to “navigable waters” (also referred to as “waters of the United States”). Although the CWA addressed groundwater in a variety of contexts, the CWA and its implementing regulations did not clearly incorporate discharges to or via groundwater into the NPDES permitting program. In addition, EPA has never clearly and consistently expressed its position on the issue of whether (or under what circumstances) discharges to or via groundwater are subject to CWA jurisdiction.

EPA Has Issued Inconsistent Guidance with respect to whether the NPDES Program and “Waters of the United States” Encompass Discharges to Groundwater
The NPDES program regulates discharges of pollutants from “point sources” to “navigable waters,” which the CWA defines in turn as “waters of the United States.”[1] As described in our previous alerts on this topic,[2] significant rulemaking efforts and litigation have focused on what water bodies are encompassed within the definition of “waters of the United States,”[3] the scope of which has ebbed and flowed over time. Most recently, the Supreme Court’s decision in Rapanos v. United States led to substantial confusion.[4] While a plurality of the justices agreed that “waters of the United States” did not include the appellants’ wetlands (which were near but did not abut navigable waters), they disagreed as to the proper test for determining what water bodies do qualify as “waters of the United States.”[5] To resolve the uncertainty, EPA and the Army Corps of Engineers (Corps) issued a new rule in 2015 based on one of the two tests set out by the plurality in Rapanos (the “significant nexus” test in the Kennedy concurrence).

The regulatory definition of “waters of the United States” has never included groundwater in the list of water bodies regulated under the CWA.[6] In addition, in EPA’s recent effort to revise its definition of “waters of the United States” and scope of CWA jurisdiction, the agency did not include groundwater.[7] The preamble to EPA’s rulemaking in the 2015 rule plainly states: “The rule excludes for the first time certain waters and features over which the agencies have generally not asserted CWA jurisdiction, as well as groundwater, which the agencies have never interpreted to be a ‘water of the United States’ under the CWA.”[8]

EPA’s Office of General Counsel also issued an opinion in 1973 stating that:
Section 402 [33 U.S.C. § 1342] authorizes the Administrator to issue a permit ‘for the discharge of a pollutant.’ Under § 502(12) the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters (or the contiguous zone of the ocean). Discharges into ground waters are not included. Accordingly, permits may not be issued, and no application is required, unless a discharge into navigable waters is proposed or is occurring.[9]

But EPA statements in other contexts have hinted that groundwater may be included within the CWA’s jurisdiction under certain circumstances. Numerous courts have noted that the Preamble to NPDES Permit Application Regulations for Storm Water Discharges provides that “[T]his rule-making only addresses discharges to waters of the United States, consequently discharges to ground waters are not covered by this rulemaking (unless there is a hydrological connection between the ground water and a nearby surface water body).”[10]

Because of EPA’s Inconsistent Guidance, There is a Split in the Circuits on the CWA’s Jurisdiction
The lack of clarity in the statute, legislative history, and EPA guidance has resulted in a wide array of inconsistent judicial decisions which conclude in some cases that the NPDES permitting program extends to discharges to groundwater, in other cases that it does not, and in yet other cases that the NPDES permitting requirement may extend to pollutants migrating via groundwater that is hydrologically connected to surface waters that constitute “waters of the United States” (also known as “tributary” groundwater) but not to “isolated” or “non-tributary” groundwater.

Early in February 2018, the Ninth Circuit held in Hawai’i Wildlife Federation v. County of Maui, that the County’s discharge of sewage effluent into four groundwater injection wells that indirectly discharged into the ocean via groundwater required the County to obtain an NPDES permit.[11] The County has ninety days to file a petition for certiorari with the U.S. Supreme Court.[12]

With the Hawai’i Wildlife Federation decision, the Ninth Circuit followed in the footsteps of the Seventh Circuit and several district court decisions in the Ninth, Tenth, and other Circuits finding that Congress intended to regulate the release of pollutants that reach waters of the United States even if the pollutants reach such surface waters through groundwater with a direct hydrologic connection.[13] For instance, in Idaho Rural Council v. Bosma, a district court in Idaho allowed plaintiffs (an organization representing downstream farmers) to pursue a CWA citizen suit claim that the...