On September 24, 2018, in two separate decisions, the Sixth Circuit Court of Appeals found that coal ash wastewater that enters groundwater and eventually travels to navigable waters through the groundwater is not regulated under the Clean Water Act (“CWA,” or the “Act”).  In these decisions, the Sixth Circuit expressly disagrees with recent holdings from the Fourth and Ninth Circuits, paving the way for potential Supreme Court review.

The CWA requires a permit for discharge of pollutants into navigable waters.  33 U.S.C. §§ 1251 et seq.  At issue in both Sixth Circuit cases is whether the CWA extends to regulate indirect discharge into a navigable water, through groundwater.  Rejecting the “hydrological connection” theory, the Sixth Circuit found that groundwater is not subject to regulation under the CWA because it is not a point source.  Therefore, the discharge of pollutants into groundwater, and subsequent travel to a navigable water, also does not fall within the scope of the CWA.

In Kentucky Waterways Alliance; Sierra Club v. Kentucky Utilities Company, the question before the Sixth Circuit was whether the CWA regulates coal ash wastewater, discharged through leaks from ash ponds, that then travels through groundwater to enter the Cumberland River, a navigable waterway.  The Court found that the “CWA does not extend liability to pollution that reaches surface waters via groundwater.”  Opinion at 2.  Kentucky Utilities Company operates a coal-burning power plant that disposes of waste (coal ash) by combining coal ash with water, and depositing that wastewater into man-made ponds nearby.  Plaintiffs argued that groundwater is a point source, requiring a permit under the CWA.  Alternatively, under the “hydrological connection” theory, Plaintiffs asserted that the ash ponds were polluting nearby groundwater, and that this groundwater was flowing into a nearby lake, exacerbating the water quality.  Without a CWA permit, Kentucky Utilities Company was in violation of the Act.  The Sixth Circuit disagreed with both of Plaintiffs’ theories: “[r]eading the CWA to cover groundwater pollution like that at issue in this case would upend the existing regulatory framework.”  Id. at 16.

In its holding, the Sixth Circuit explicitly rejected the decisions of the Fourth Circuit in Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al. (4th Cir., issued Apr. 12, 2018), and the Ninth Circuit in Hawaii Wildlife Fund et al. v. County of Maui, Case No. 15-17447 (9th Cir., filed Feb. 1, 2018).  These courts have found that an indirect discharge falls within the scope of the CWA, if the indirect discharge is sufficiently connected to, or “fairly traceable to,” navigable waters covered under the CWA

In the sister coal ash case, Tennessee Clean Water Network; Tennessee Scenic Rivers v. Tennessee Valley Authority, the Tennessee Valley Authority (“TVA”) operates a coal-fired power plant, the Gallatin Fossil Plant (“Gallatin plant”), which sits on a part of the Cumberland River.  The Court held that the discharge of coal combustion wastewater from the Gallatin plant into the Cumberland River through a pipe is “indisputably” regulated under the CWA.  Opinion at 2.  However, water mixed with coal ash, that is allegedly discharged through leaks in unlined waste ponds, is not subject to regulation under the CWA.  The Sixth Circuit rejected the district court’s finding that TVA had violated the CWA because its coal ash ponds at the Gallatin plant leaked pollutants through groundwater that is “hydrologically connected” to a navigable water without a permit.  Instead, the Court found that there was “no support for this theory in either the text or the history of the CWA and related environmental laws.”  Id. at 3.

Based on the Fourth, Ninth and Sixth Circuit decisions, it appears that whether the CWA’s jurisdiction reaches groundwater that that is “hydrologically connected” to a navigable water is going to the United States Supreme Court for an ultimate decision.  Moreover, in addition to the Circuit Courts of Appeals’ decisions, the issue of the CWA’s jurisdictional reach continues to be litigated in the district courts in recent months.  In August 2018, the U.S. District Court for the Central District of California found that, if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA.  Keep updated on CWA news by following the California Environmental Law Blog.

The Sixth Circuit cases are: Tennessee Clean Water Network; Tennessee Scenic Rivers Association v. Tennessee Valley Authority, Case No. 17-6155 (6th Cir., filed Sept. 24, 2018), and Kentucky Waterways Alliance; Sierra Club v. Kentucky Utilities Company, Case No. 18-5115 (6th Cir., filed Sept. 24, 2018).