If a person discharges a pollutant from a point source into groundwater, and that pollutant then reaches a water of the U.S. as defined under the Clean Water Act, is a discharge permit required? In other words, although groundwater is not regulated by the Clean Water Act itself, can regulation be imposed if the groundwater serves as a conduit between a discharge and jurisdictional water?
After two federal cases reached different conclusions on this, the Environmental Protection Agency (EPA) is seeking public comment on this question.
Background
The Clean Water Act Section 402 requires a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of “pollutants” from “point sources” into “navigable waters.” Each of these terms is further defined under the Clean Water Act.
A pollutant is broadly defined and includes any type of industrial, municipal or agricultural waste. Examples could include soil, rock, fertilizer, herbicides, pesticides or manure.
A point source is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
Finally, navigable waters are defined as being “Waters of the United States,” the proper definition of which there have been years of debate and litigation.
Hawai’i Wildlife Fund v. County of Maui
The county of Maui has four wells at a wastewater facility that currently serve as a means of disposing sewage (effluent) into groundwater and eventually into the Pacific Ocean. When sewage is received by the facility, it is treated and then either sold for irrigation purposes or injected into these wells for disposal.
All parties agree that once the effluent is injected into the groundwater, some of it eventually reaches the Pacific Ocean.
The Hawai’i Wildlife Fund filed suit and the trial court found that the county of Maui violated the Clean Water Act by discharging effluent into groundwater and into the ocean without the required NPDES permit.
The 9th Circuit addressed the issue of whether the Clean Water Act applies only where the pollutant is discharged directly into a water of the U.S. or whether it applies where a pollutant is discharged into groundwater and then indirectly makes its way into a water of the U.S. Siding with the plaintiffs, the court found that because the county discharges pollutants from a point source that ends up in a water of the U.S., a permit is required, regardless of the fact that it travels through groundwater as a channel to reach the jurisdictional water.
Kentucky Waterways Alliance v. Kentucky Utilities Co.
A coal-fired power plant in Kentucky is located near Herrington Lake and generates coal combustion residuals of fly ash and bottom ash as a result of its coal-burning processes. Historically, the residuals were disposed of by transport through a sluice system to settling ponds.
The Sierra Club filed suit claiming a Clean Water Act violation because the plant’s settling ponds are contaminating groundwater in the area, and that the contaminated groundwater was discharging via spring into Herrington Lake.
The plant filed a motion to dismiss the Clean Water Act claims because the Sierra Club did not allege that “pollutants are conveyed directly” from the ponds to the navigable waters, and that the pollution is non-point source, which is not governed by the Clean Water Act. The plaintiffs responded that their allegation the groundwater is hydrologically connected to the water of the U.S. was sufficient to state a claim.
The U.S. Court of Appeals for the Eastern District of Kentucky dismissed the case. In analyzing the issue, the court noted that the plaintiffs do not argue the groundwater itself is a WOTUS, and the court said that was “with good reason,” as the vast majority of courts to consider this issue have rejected that argument.
However, courts are divided over whether hydrologically connected groundwater qualifies as a point source under the Clean Water Act. This court found that it does not and stated that “adopting this theory would be inconsistent with the text and structure of the Clean Water Act.”
EPA comment request
The EPA recently sought public comment on this issue. The EPA makes clear it has never taken the position that all discharges of point source pollutants into groundwater would require a NPDES permit, but that the permit requirement can apply in limited situations where the pollutants discharged into the groundwater reach a jurisdictional surface water to which the groundwater has that hydrologic connection.
Takeaways
This issue is important for all landowners, including those involved in agriculture. Some critics of the Hawai’i Wildlife Fund case argue that recognition of Clean Water Act application to groundwater in any context could cause a slippery slope and result in additional federal jurisdiction over groundwater.
Conversely, critics of the Kentucky Waterways Alliance case argue that by allowing discharge of pollutants into groundwater which will eventually reach a jurisdictional water without requiring Clean Water Act compliance is essentially an end-run around the Clean Water Act’s protections.
Regardless of one’s position, this issue further highlights the uncertainty surrounding the scope of the Clean Water Act and poses additional questions for agricultural producers as to what their responsibilities and potential liability could be with regard to discharges of point source pollutants into groundwater. 
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Tiffany Dowell Lashmet
- Assistant Professor and Extension Specialist – Agricultural Law
- Texas A&M AgriLife Extension Service
- Email Tiffany Dowell Lashmet
