Pick your phrase; “significant nexus,” “hydrologic connection,” or, more recently, “groundwater conduit.” Regardless of the term, the question of whether groundwater that is “connected” to surface water (or more specifically, a “navigable” water or waters of the United States [WOTUS]) is regulated under the Clean Water Act (CWA) has been debated and litigated almost since the CWA was enacted.
For years, the battle has been over the definition of WOTUS. Much of the litigation was around the definition of “wetlands.” Dragun Corporation provided technical support with respect to one of the key WOTUS cases (Rapanos v. United States) that went to the US Supreme Court in 2006.
Unwieldy WOTUS Final Rule
The Obama Administration issued a “final” WOTUS rule in mid-2015 that significantly broadened the definition of WOTUS. Under this definition, many, many activities formerly not regulated by the CWA became regulated, and it was challenged in court. To date, due to various court rulings, this final WOTUS rule is still unclear (see A Convoluted Regulatory Pathway, September 4, 2018).
Litigating “Hydrologically Connected”
More recently, the debate has been around whether a “discharge” of a pollutant to groundwater that makes its way to a WOTUS (aka hydrologically connected) is regulated under the CWA. In fact, one lawyer has referred to the current legal wrangling activity as a “wave of citizen suits.”
Writing for Environmental Protection, Pete Jamison and David Edelstein from Archer state, “A recent wave of citizen suits filed under the federal Clean Water Act has targeted various industries, relying on what has been termed the ‘groundwater conduit’ or ‘hydrological connection’ theory of liability. Under this theory, the discharge of pollutants to groundwater is actionable under the CWA if the pollutants ultimately migrate to the waters of the United States. If viable, the theory expands liability under the CWA and has the potential to affect industries throughout the country. In just the past year, litigation related to the groundwater conduit theory has generated diverging opinions from numerous federal courts, leaving businesses uncertain regarding their potential liability (emphasis added).”
Below is a brief look at some of the conflicting rulings that Jamison and Edelstein outline (with emphasis added).
- The Ninth Circuit (see Hawaii Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018) held that the discharges were regulated under the CWA because “…the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.”
- The Fourth Circuit also adopted the groundwater conduit theory, finding that the CWA covered discharges to groundwater with a “…direct hydrological connection” to navigable waters (see Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 [4th Cir. 2018]).
- In Upstate Forever, the Fourth Circuit subsequently issued a decision in Sierra Club v. Virginia Elec. & Power Co., 2018 WL 4343513 (4th Cir. Sept. 12, 2018), that substantially narrowed application of the theory. In Sierra Club, the court affirmed, in part, and reversed, in part, a district court finding that Virginia Electric was liable for discharges to navigable waters through groundwater from a coal ash landfill and settling.
- In a pair of opinions, the Sixth Circuit added to the uncertainty by rejecting outright the groundwater conduit theory. See Tennessee Clean Water Network v. Tennessee Valley Authority, 2018 WL 4559103, at *5 (6th Cir. Sept. 24, 2018); Kentucky Waterways Alliance v. Kentucky Utilities Company, 2018 WL 4559315 at *5 (6th Cir. Sept. 24, 2018).
A Discrete Discharge through a Pipe
During my college career (circa mid-to-late 1970s) along the shores of Lake Superior, I was taking water pollution courses in the wake of the recently passed CWA. I recall my professors talking about “pollution” being discharged through pipes and why the CWA was enacted to protect our surface waters. It is pretty easy to connect a discrete discharge from a discrete pipe to its source. We never discussed groundwater discharges to surface waters in this context.
I also took courses on the hydrologic cycle, which certainly shows an interaction between groundwater and surface water. From that basis, all water is “connected” through the hydrologic cycle; from evaporation to precipitation to surface water to groundwater… and the cycle continues.
Discerning a “connection” between a contaminant in groundwater migrating to a surface water is much more complicated than a discrete pipe discharge. Many Ph. D.s have written their thesis on contaminant migration in groundwater/surface water systems.
Ripe for Supreme Court Review
In the article in Environmental Protection, the authors state that the issue of hydrologic connection for groundwater discharge is “ripe for Supreme Court review.” It will be interesting to see where the courts end up on this matter. I hope there is a reasonableness to their rulings as to the intent of the CWA. If the courts rule that a discharge to groundwater is regulated by the CWA simply because the groundwater is “hydrologically connected” to a surface water… why stop there? That raindrop falling from the sky is, after all, part of the hydrologic cycle, and therefore, at some point in time, “hydrologically connected” to the rest of the water in the cycle.
I think we can generally assume that everyone wants clean water. In my humble opinion, incorporating groundwater discharge into the purview of the CWA is overreaching and will handcuff businesses, farmers, developers, etc. There are other laws and regulations that deal with groundwater contamination.
In the meantime, if you are hoping to develop property or farm land that is in the grey area of the CWA, you are left wanting for certainty, and your business pays the price. Uncertainty, whether it is WOTUS or wondering how the court may rule with respect to your particular situation, is not good for business.
Groundwater Help Despite Regulatory Uncertainty
The good news is, despite the chaos surrounding WOTUS, we can help. Our staff have used advanced tools, including environmental isotopes, to help our clients when they face complicated groundwater issues (movement, nexus, fate and transport of chemicals, groundwater supply, etc.).
For more information on our groundwater expertise, including litigation support, contact me at 248-932-0228, ext 125.