Current court cases have raised the question of whether the Clean Water Act (“CWA”) was intended to govern discharges of pollutants into groundwater. Jurisdictions have split on the issue, with some courts concluding that the CWA is meant to only regulate discharges of pollutants made directly into navigable waters, while others have determined that the Act also governs discharges of pollutants made into groundwater that eventually carries the pollutants into navigable waterways. The issue of whether the CWA governs groundwater discharges is currently before the Supreme Court of the United States, which heard arguments on the issue early in November, 2019. However, while regulators wait on the Court’s opinion, litigations over whether the CWA governs discharges into groundwater are still on-going with two courts issuing opinions on the subject since the Supreme Court heard arguments.

The text of the CWA prohibits the “discharge of any pollutant” without a National Pollution Discharge Elimination System Permit (“NPDES”). The Act defines “discharge of any pollutant” as “any addition of any pollutant to navigable waters from any point source.” It then goes on to define “point source” as “any discernable, confined, and discrete conveyance” with examples including pipes, ditches, and wells. Although the definition of “point source” in the CWA does not mention groundwater, over time many have argued that the statute should be interpreted to consider discharges of pollutants made directly into groundwater as discharges into navigable waters by a point source when the groundwater carries the pollutant into navigable waters. The theory is referred to as “conduit theory” because the groundwater serves as conduit that deposits the pollutants into navigable waters much like a pipe or drainage ditch.

To date, both the Fourth and the Ninth Circuits have adopted the conduit theory, while the Sixth Circuit has declined to do so. The Ninth Circuit case that adopted the conduit theory in that jurisdiction, Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018), is currently before the Supreme Court. However, in the short time since that case was argued before the Supreme Court, two other courts have issued opinions concluding that the CWA does not govern discharges into groundwater. Both courts concluded that the language of the CWA was so ambiguous that it was reasonable for administering agencies to interpret the statute as not applying to groundwater discharges.

In Conservation Law Found. v. Logwood Venues & Destinations, Inc., No. 18-11821-WGY, 2019 WL 6318530 (D. Mass. Nov. 26, 2019) the Federal District Court for the District of Massachusetts concluded that the CWA did not regulate discharges into groundwater, finding that the Environmental Protection Agency (“EPA”) analysis that the Act did not regulate discharges into groundwater was a reasonable interpretation of the statute. This case began when the plaintiffs brought suit against owners of a resort complex for the unpermitted discharge of pollutants. The resort treated its wastewater at a facility located on the resort property, after which treated wastewater seeped out of underground leach pits where it was stored, entered the groundwater, and finally made its way into the ocean. The defendants did not dispute that the pollutants from their facility had seeped into the groundwater and eventually reached a navigable waterway, but argued that such discharges were not covered by the CWA. In reaching its opinion, the court noted that the text of the CWA was extremely ambiguous with regard to discharges into groundwater. Because the statute is so ambiguous, the court determined that it would give deference to any reasonable EPA interpretation. While the litigation of this case was on-going, EPA published an analysis concluding that discharges of pollutants into groundwater were not covered by the CWA. Because the court felt that this was a reasonable interpretation of the CWA, it gave deference to EPA and found in favor of the defendants.

Only a couple of weeks later, the Minnesota State Court of Appeals issued a similar opinion in Matter of NPDES/SDS, No. A18-2094, 2019 WL 6691515 (Minn. Ct. App. Dec. 9, 2019). In that case, the court considered multiple consolidated complaints against a National Pollutant Discharge Elimination System/State Disposal System (“NPDES/SDS”) permit that was issued by the Minnesota Pollution Control Agency (“MPCA”) to United States Steel Corporation (“U.S. Steel”). The permit was issued pursuant to the CWA and governs discharges of pollutants from U.S. Steel’s Minntac ore processing operation. Plaintiffs in the case challenged MPCA’s interpretation of the CWA, arguing that the permit was not sufficiently protective of surface waters in the area because the federal portion of the permit – the NPDES permit that was issued according to federal law – did not cover discharges of pollutants into groundwater. Ultimately, the court concluded that MPCA did not violate the CWA in determining that the Act does not govern discharges of pollutants into groundwater.

In Minnesota, MPCA is the regulatory authority with responsibility to issue both federal NPDES permits as well as SDS permits which are issued according to Minnesota state law. The NPDES permit at issue in this litigation only regulated U.S. Steel’s discharges into surface waters. MPCA chose to regulate U.S. Steel’s groundwater discharges through the SDS permit, the portion of the permit issued according to state law, because it interprets the federal CWA as not governing discharges into groundwater. The plaintiffs challenged that interpretation, arguing in favor of the conduit theory. However, the court agreed with MPCA, finding that the language of the CWA was open to multiple interpretations. The court concluded that because the text of the CWA was ambiguous, it was reasonable for MPCA to read the Act as only regulating discharges of pollutants into navigable waters, not groundwaters. Therefore, the court deferred to MPCA’s decision not to regulate U.S. Steel’s groundwater discharges via the federal NPDES permit.

If the Supreme Court decides to adopt the conduit theory when it issues its opinion in Hawai’i Wildlife Fund v. Cty. of Maui, anyone who discharges pollutants into groundwater without a NPDES permit could find themselves in violation of the CWA. Although lower courts have been upholding agency interpretation that the CWA does not regulate discharges into groundwater, it is uncertain how the Supreme Court will ultimately rule.

 

To read U.S. Supreme Court case documents in Hawai’i Wildlife Fund v. Cty. of Maui, click here.

To read the Ninth Circuit opinion in Hawai’i Wildlife Fund v. Cty. of Maui, click here.

To read the district court opinion in Hawai’i Wildlife Fund v. Cty. of Maui, click here.

To read the opinion in Conservation Law Found. v. Logwood Venues & Destinations, Inc., click here.

To read the opinion in Matter of NPDES/SDS, click here.

To read the text of the Clean Water Act, click here.

For more National Agricultural Law Center resources on the Clean Water Act, click here.