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Updated status of whether groundwater is a water of the US

Updated: Another Federal Circuit Court of Appeals Has Held that Discharges of Pollutants Through Groundwater to Waters of the US Are Covered by the Clean Water Act

 

By:  Kenneth A. Reich, Esq., Kenneth Reich Law, LLC

 

In Upstate Forever, et al. v. Kinder Morgan Energy Partners, et al., CA-4, April 12, 2018 (No. 17-1640), a second federal Court of Appeals has recognized that an unpermitted discharge of pollutants from a point source through groundwater into a water of the United States is covered by the Clean Water Act.  In that case, the discharge was a leak from an underground gasoline pipeline that traveled 400-1000 feet via the groundwater into two tributaries of the Savannah River.  The other recent Court of Appeals decision is Hawaii Wildlife Fund et al. v. County of Maui, CA-9, February 1, 2018 (No. 15-1744).  The unpermitted discharge in that case was deliberate injection of wastewater into wells at the wastewater treatment plant that traveled through the groundwater into the Pacific Ocean, as proven by dye tests or admitted by the County.  Note that in both cases there was a clear connection between the discharge, the groundwater and a “water of the United States” (“WOTUS”), so that it was unnecessary for the court to decide whether groundwater itself is a WOTUS under the Clean Water Act.  Traditionally the courts have held that groundwater itself is not a WOTUS and the Obama EPA Rule defining WOTUS under the Clean Water Act (proposed for repeal or revision by the Trump EPA) exempts groundwater from the definition.  One question raised by these recent Court of Appeals decisions is how far the courts will expand the definition of the terms “discharge” and “point source” beyond the unique sets of facts in these cases to include discharges into groundwater–where the connection to a WOTUS is less clear.

As a result of subsequent cases from the courts of appeals on both sides of these holdings, the Supreme Court granted certiorari in the Hawaii case and briefing is underway in that case as of June 2019.  Docket No. 18-260.

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