Groundwater Indirect Discharges and CWA Regulation: Permitting Requirements in Light of Circuit Court Split

The U.S. Supreme Court has agreed to resolve an important question about how the federal CWA applies to groundwater. Under the Act's National Pollution Discharge Elimination System (NPDES), entities must obtain permits from federal or state officials before they can lawfully discharge pollutants into the nation's surface waters. The specific question the Supreme Court is being asked to address now is whether the NPDES permit requirement applies to pollution released into groundwater that migrates underground to nearby surface waters.

In February 2018, the Ninth Circuit upheld a Hawaii federal district court's ruling that Maui County violated the CWA by allowing pollutants from four sewage wastewater injection wells to seep into the Pacific Ocean. The panel held that the releases constituted "point source" discharges subject to the CWA's NPDES permitting requirements, even though they didn't directly discharge the pollutants into the ocean.

In April 2018, the Fourth Circuit held, among other things, that indirect discharges to navigable waters via groundwater can lead to CWA liability. But in September 2018, the Sixth Circuit reached a contrary conclusion, ruling in two cases that environmental groups could not pursue their CWA claims that pollutants from coal ash ponds had traveled through groundwater and harmed navigable waters.

Multiple petitions for certiorari followed, and the U.S. Solicitor General's Office filed a brief supporting a grant of certiorari, arguing that given the importance of the indirect discharge issue and the existence of a circuit split, the Supreme Court should resolve that issue now. The SG’s office also noted that the issue has "significant" implications for industry, since those found to have violated the Act can be subject to civil penalties and criminal punishment.

Listen as our authoritative panel of environmental practitioners discusses the key issues, the current state of the law, predictions for U.S. Supreme Court review, and implications for industries across the economic spectrum.

1. Overview of CWA and groundwater discharge issues
2. Key issues involved
3. Circuit decisions and upcoming high court review
4. Practical considerations in counseling clients
5. Predictions and strategy

The panel will review these and other relevant topics:

• Does the CWA require a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater?
• Does the CWA prohibit the release of pollutants from a source when they eventually enter surface waters through groundwater migration?
• Absent CWA regulation, what laws apply to curtail contamination of such pollutants?
• What are the key questions of statutory construction in interpreting Section 402?
• What is the current state of the law?
• What are the implications for the regulated community?
• What are the best strategies for counseling clients to avoid civil penalties and criminal punishment?