Under the CWA, the discharge of pollutants, meaning the “addition of any pollutant to navigable waters from any point source,” without a permit is prohibited. Previously, we reported on the circuit split (Part 1) between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to WOTUS through groundwater required a CWA permit.
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As mentioned in a prior blog post, the Menominee Indian Tribe of Wisconsin (“Tribe”) sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine (“Mine”) located in Michigan, arguing that EPA and Corps have failed to take responsibility under the Clean Water Act

Husch Blackwell’s Daniel Fanning and Coty Hopinks-Baul provide interesting insights in the latest post from the CWA Series on whether or not a permit is required for discharges to groundwater under the Clean Water Act.
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On February 20, 2018, the U.S. Environmental Protection Agency (EPA) requested comments on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water may be subject to regulation under the Clean Water Act (CWA).

The answer to this question will have far reaching implications because the scope of the agency’s powers under the CWA determines the scope of:

  • National Pollutant Discharge Elimination System (NPDES) permitting programs;
  • Section 404 wetlands permitting programs;
  • Section 311 oil/hazardous substance release requirements; and
  • Spill Prevention Control and Countermeasure (SPCC) requirements.

As a result, the extent to which a discharge to groundwater that reaches jurisdictional surface waters is subject to regulation under the CWA is a significant issue for farmers, manufacturers, and anyone who discharges to groundwater.

Background

The CWA regulates the discharge of pollutants and placement of fill into “navigable waters,” and defines navigable waters as “the waters of the United States.” Since the CWA was passed in 1972, there has been much debate over the extent to which waters that are not considered navigable in fact and wetlands may be regulated as waters of the United States. This uncertainty has given rise to a variety of CWA citizen suits alleging that discharges from point sources that migrate via groundwater to waters of the United States require NPDES permits.

Over the years, various federal courts have reached differing conclusions on the question of whether discharges to groundwater can be considered discharges to waters of the United States. Most recently, the Ninth Circuit addressed this issue in Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018). In that case, the County of Maui (the “County”) discharged treated effluent from its wastewater reclamation facility into injection wells. Tracer dye studies confirmed that this effluent migrated through the groundwater to the Pacific Ocean. A three-judge panel for the Ninth Circuit Court of Appeals ruled that the County’s discharge triggered Clean Water Act jurisdiction and the need for an NPDES permit because the groundwater was hydrologically connected to the Pacific Ocean, a water of the United States. Under the court’s ruling, an indirect discharge of contaminants from point sources that travels through groundwater and ultimately reaches navigable waters will now be subject to federal permitting requirements.
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On January 22, 2018, the U.S. Supreme Court unanimously held that challenges to the 2015 Waters of the United States Rule (the “WOTUS Rule” or “Rule”) belong in district court rather than the appellate court. The WOTUS Rule was developed by the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) to clarify which waters and wetlands fall under federal jurisdiction. Numerous parties challenged the Rule in both federal district courts and circuit courts of appeals. The circuit court actions were consolidated in the Court of Appeals for the Sixth Circuit. In 2016, the Sixth Circuit held that it had jurisdiction to hear petitions related to the legality of the Rule and issued a nationwide stay. This decision was appealed to the Supreme Court by industry groups who argued that, under the plain text of the Clean Water Act, the district courts were the proper jurisdiction.

In an opinion authored by Justice Sonia Sotomayor, the Court noted that the Clean Water Act lists seven specific categories of EPA actions that federal courts of appeals have the exclusive power to review and the Rule did not fall into a category on the list. The Court determined that it had “no basis to depart from the [Clean Water Act]’s plain language” despite arguments by the U.S. government (forwarded by both the Obama and Trump Administrations) that the Rule was “functionally related” to categories on the list and that efficiency, national uniformity, and other policy arguments weighed in favor of making the circuit courts of appeals the appropriate jurisdiction. The Court reversed and remanded the case to the Sixth Circuit, directing the court to dismiss the petitions for review that had been filed.

Because the Supreme Court’s decision was related to jurisdiction and not the merits of the Rule, what does this mean for the Rule’s future?
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The Menominee Indian Tribe of Wisconsin has sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine, arguing that EPA and Corps have failed to take responsibility for reviewing wetland permits for the project. The lawsuit was expected since the Tribe filed a notice

The month of August, 2017 has seen three distinct developments that may significantly impact management of “Coal Combustion Residuals,” or “CCR,” which include bottom ash, fly ash, boiler slag, and flue gas desulfurization materials generated from burning coal at steam‑powered electricity plants. Although one of these developments may provide a degree of regulatory relief, the other two may preserve or even strengthen existing regulatory requirements.
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