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The Obama administration's Clean Water Rule attempts to clarify the Clean Water Act's jurisdiction by redefining waters of the U.S. such that some categories of waters that would be considered jurisdictional based on case-by-case determinations could be reclassified as per se jurisdictional. Author James Meinert, pursuing both his law degree and a masters of public health at the University of Minnesota, says in this article, a winning entry in the 2016 Bloomberg Law Write-On Competition for law students, that the definitions have left an emerging jurisdictional issue to percolate largely under the radar—namely, when does a discharge to non-jurisdictional groundwater nevertheless require a discharge permit because the discharged pollutants eventually reach jurisdictional surface waters?
By James Meinert
James Meinert is a JD/MPH joint degree student at the University of Minnesota Law School and School of Public Health focusing on environmental law, toxicology, and risk assessment. Previously, he worked for the Natural Resources Defense Council and, as a student, has clerked for state and federal environmental enforcement agencies.
The Clean Water Rule issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers attempts to clarify the Clean Water Act's jurisdiction by redefining waters of the U.S. (WOTUS) such that some categories of waters that would be considered jurisdictional based on case-by-case determinations would be reclassified as per se jurisdictional. Much of the press and political posturing around this rule has focused on whether the two agencies have demarcated per se jurisdiction over more waters than they could have in an individual determination after a battle of the consultants' reports.1
However, the focus on WOTUS definitions has left an emerging jurisdictional issue to percolate largely under the radar—namely, when does a discharge to non-jurisdictional groundwater nevertheless require an National Pollutant Discharge Elimination System (NPDES) permit because the discharged pollutants eventually reach jurisdictional surface waters? This formerly second-tier Clean Water Act jurisdictional issue is rapidly coming to the forefront of litigation strategies and judicial opinions because a new theory lets judges sidestep difficult, fact-intensive analysis.
Discharge to groundwater that has a direct hydrological connection to a water of the U.S. is one of the areas where the EPA asserts jurisdiction on a case-by-case basis and does not claim per se jurisdiction. The EPA permit writer's manual expresses this position, stating that “discharges through non-jurisdictional features that reach waters of the United States may need a permit even if the discharge is not directly to a jurisdictional waterbody.”2 EPA has only once tried to assert per se jurisdiction over this type of discharge—in a draft effluent limitations guideline for animal feeding operations. EPA put out a draft rule in 2001 that required feedlots to apply for an NPDES permit as soon as they proposed to discharge to groundwater with a direct hydrologic connection to surface water.3
Discharge to groundwater that has a direct hydrological connection to a water of the U.S. is one of the areas where the EPA asserts jurisdiction on a case-by-case basis and does not claim per se jurisdiction.
After strong pushback from the agriculture industry and others, the final rule dropped any mention of discharges to groundwater,4 and the rule was partially vacated for the “potential to discharge” language.5 The rule was reissued,6 partially vacated again,7 and finally re-issued in 2012, again without any reference to groundwater.8 Today, it might seem like Clean Water Act jurisdiction over discharges to groundwater is a dying issue, as EPA has been unable to fold it into regulations, and the new WOTUS rule expressly excludes jurisdiction over groundwater.9 However, some courts have begun to use a new streamlined analysis under a conduit theory of groundwater jurisdiction that has shifted the burden in favor of finding jurisdiction.
The central tension over when to regulate a discharge to non-jurisdictional groundwater is: How long did the pollutant take to get to jurisdictional water? If the pollutant discharged to groundwater flows directly into surface water within a few minutes or hours, it seems clear enough the discharge is actually to the surface water. However, what if the pollutant takes a month? Two years? What if the pollutant travels miles underground, takes two years, and only some of it seeps into a jurisdictional surface water?
When faced with these more difficult cases, the circuits have split between those that find a discharge to groundwater cannot be jurisdictional at all, and those that find it can be jurisdictional as long as the groundwater has a direct hydrologic connection to surface water.10
In courts that allow jurisdiction to exist for a discharge to groundwater with a direct hydrological connection to surface water, the jurisdictional analysis is fact-intensive under a theory that the groundwater itself also has to meet the definition of point source as a discrete conveyance. In this analysis, when pollutants re-emerge from groundwater within hours or days, courts are often comfortable finding the groundwater is a discrete conveyance, but often rule against jurisdiction when pollutants migrate for years.
Two 2013 cases in district courts within the jurisdiction of the Third Circuit Court of Appeals help show some of the difficulty in applying this theory. In both cases, historic soil and groundwater contamination was detected in off-site surface water. In a case finding jurisdiction, there were increased concentrations of metals detected in river sediments surrounding a site where metals contaminated a settling lagoon and ditch, and had percolated into groundwater.11 The court noted facts going to proximity, traceability, and speed of flow to determine that the discharge into groundwater and then into the river preserved the direct hydrological connection and made the groundwater a discrete conveyance. In a case where pollution took years to migrate from underground tanks to surface waters, later detection of the pollutants in jurisdictional surface waters and tracking back to the source 500 feet away was not sufficient for jurisdiction, the U.S. District Court for the Eastern District of Pennsylvania held.12
Some courts have called this analysis a “point source” test. The main analysis being whether the point source discharged to surface water through the groundwater in a roughly continuous fashion such that the groundwater can be characterized as a discrete conveyance (jurisdictional). Or if the point source discharged to groundwater and the pollutants migrated slowly or haphazardly to surface water such that the polluted groundwater was a diffuse source rather than a discrete point source (non-jurisdictional). These analyses also are usually fact intensive, and different circuits had built up factors used to show the groundwater is a discrete conveyance and thus maintains a direct hydrological connection from the original point source to surface water.13
In 2014, the U.S. District Court for the District of Hawaii ruled that these factors used in the old analysis were irrelevant. As long as it was clear who discharged the pollutant to groundwater, and it was clear that the pollutant emerged in jurisdictional water, then there was jurisdiction because the groundwater was a “conduit” for the pollutant.14
By introducing the conduit theory of groundwater jurisdiction, the district court in Hawai’i Wildlife Fund cut all the corners in a fact-intensive analysis that had previously made assertions of jurisdiction over this type of discharge incredibly expensive and difficult to prosecute. For example, a main piece of evidence in that case had been elaborate dye-tracing tests that established the pollutants had traveled from the alleged point source into the Pacific Ocean. A number of judges have now followed this reasoning and declined to sift through complex fact-intensive analysis construing a long list of factors. The new jurisdictional analysis under this line is simply whether it can be shown that the point source discharged to groundwater and whether the pollutant ended up in jurisdictional surface water. If yes to both, then there is jurisdiction under the conduit theory.
In late 2015, two district courts in the Fourth Circuit Court of Appeals followed the Hawai'i Wildlife Fund reasoning to shortcut the old fact-intensive analysis and simply assert there is jurisdiction for pollutants discharged to groundwater where the pollutants clearly end up surface water using the conduit theory of jurisdiction.15 Both cases involved holding coal ash in ponds that steadily polluted groundwater, which then seeped into nearby surface water. Notably, in a similar North Carolina case involving a Duke Energy coal ash pond, a federal district court had ruled against groundwater jurisdiction using the old groundwater “point source” analysis a year prior.16
As the majority of the country continues to watch the WOTUS rulemaking litigation, water law practitioners should continue to monitor NPDES enforcement cases that involve discharges to groundwater. If district courts continue to look to the Hawai’i Wildlife Fund conduit theory of jurisdiction to streamline their factual analysis, a wave of groundwater cases could begin rising through the courts.
See 46 ENR 2945, 10/2/15 (arguing WOTUS rule is a practical clarification to reduce complexity of jurisdictional determinations). But see 47 ENR 202, 1/15/16 (claiming WOTUS tributary definition covers water supply ditches, which were not previously jurisdictional).
EPA, NPDES Permit Writer's Manual, at 1-7 (2010), http://www.epa.gov/sites/production/files/2015-09/documents/pwm_2010.pdf.
66 Fed. Reg. 2960, 3015–17, 3061–62; (32 ER 131, 1/19/01) (16 TXLR 78, 1/18/01) (10 DER A-27, 1/16/01) (10 DEN A-6, 1/16/01).
68 Fed. Reg. 7176; (33 ER 2753, 12/20/02) (243 National Environment Daily, 12/18/02) (242 DER A-35, 12/17/02) (242 DEN AA-1, 12/17/02)
Waterkeeper All., Inc. v. EPA, 399 F.3d 486, 504–05, 59 ERC 2089 (2d Cir. 2005); (36 ER 430, 3/4/05) (40 National Environment Daily, 3/2/05) (40 Toxics Law Daily, 3/2/05) (39 DER A-33, 3/1/05) (39 DEN A-12, 3/1/05).
73 Fed. Reg. 70418; (39 ER 2227, 11/7/08) (212 National Environment Daily, 11/3/08) (212 DER A-29, 11/3/08) (212 DEN A-1, 11/3/08).
Nat'l Pork Producers v. EPA, 635 F.3d 738, 751, 72 ERC 2204 (5th Cir. 2011); (18 ECB 107, 4/4/11) (2011 WMART, 3/21/11) (2011 KRAFT, 3/21/11) (42 ER 566, 3/18/11) (26 TXLR 309, 3/17/11) (51 DER A-42, 3/16/11) (51 DEN A-15, 3/16/11).
77 Fed. Reg. 44494; (2012 KRAFT, 8/6/12) (43 ER 2012, 8/3/12) (27 TXLR 860, 8/2/12) (145 National Environment Daily, 7/30/12) (145 DER A-27, 7/30/12) (145 DEN A-8, 7/30/12).
80 Fed. Reg. 37054, 37099.
Waterkeeper All., Inc. v. EPA, 399 F.3d at 514–15 (2d Cir. 2005) (can), and Quivira Mining Co. v. EPA, 765 F.2d 126, 130 (10th Cir. 1985) (can), withRice v. Harken Exploration Co., 250 F.3d 264, 268 (5th Cir. 2001) (cannot); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) (cannot).
Waterkeeper All. , Inc. v. EPA, 399 F.3d at 515 (2d Cir. 2005) (using elevation, distance, and soil types as factors); Greater Yellowstone Coal. v. Larson, 641 F. Supp. 2d 1120, 1138 (D. Idaho 2009) (using travel time, distance, flow, and slope as factors).
Sierra Club v. Va. Elec. & Power Co., No. 15-cv-00112, 2015 BL 367333 (E.D. Va. Nov. 6, 2015); (15 EHSDSN 47, 11/23/15) (15 EHSDSN 46, 11/16/15) (46 ER 3472, 11/13/15) (18 TEALERT 10, 11/13/15) (30 TXLR 1101, 11/12/15) (2015 WLPM 45, 11/12/15) (See previous story, 11/10/15) (217 DEN A-13, 11/10/15) and Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, No. 1:14-CV-753, 2015 BL 344947 (M.D.N.C. Oct. 20, 2015) (30 TXLR 1053, 10/29/15) (2015 WLPM 43, 10/29/15) (46 ER 3185, 10/23/15) (204 DEN A-2, 10/22/15).
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