By: Lauren Keeler

The Clean Water Act (CWA) was passed in 1972 with the worthy goal of eliminating the discharge of pollutants into the navigable waters of the United States.[i] To achieve this objective, the CWA expressly forbids pollution into navigable waters without a permit.[ii] The permits the CWA refers to are issued under the National Pollutant Discharge Elimination System (NPDES),[iii] and the discharge of a pollutant is further defined as the addition of any pollutant to navigable waters, explicitly from a point source.[iv] While this Act of Congress is enforced by a federal agency, the Environmental Protection Agency (EPA),[v] states have the right, as well as the responsibility, to carry out the purposes of the CWA, because the Act recognizes each states’ ultimate authority over the waters within its jurisdiction.[vi]

Where Congress has drawn the line between federal and state regulation is in its delineation between point-source pollution and nonpoint-source pollution,[vii] as well as in its distinctions between navigable and non-navigable waters.[viii] Essentially, this means that the CWA’s authority ends when it is determined that the source of pollution is nonpoint-source, or the pollution is of non-navigable waters.[ix] But, the vague definitions of “point-source pollution” and “navigable waters” have left jurisdictions without a clear answer as to where Congress truly intended the line to be drawn.[x] The EPA itself has acknowledged the abundance of conflicting case law in this area, and has emphasized the affects that clarification of this issue could have on those trying to follow the CWA’s guidelines.[xi] Furthermore, the CWA does not address whether its authority extends to cover groundwater, a common conduit for pollution across the United States, and litigation has sprung up in response to the Act’s lack of clarity on the issue.

Private citizens are empowered under the Act to file civil actions against those who violate the CWA.[xii] The Sixth Circuit rendered decisions on September 24, 2018, in two separate cases involving allegations of CWA violations were made. [xiii] In both Kentucky Waterways Alliance v. Kentucky Utilities Company and Tennessee Clean Water Network v. Tennessee Valley Authority, the Sixth Circuit rejected prior decisions from both the Ninth and Fourth Circuits, in Upstate Forever v. Kinder Morgan Energy Partners LP and Hawai’i Wildlife Fund v. Cty. Of Maui, creating a circuit split.[xiv] The issue that these cases have left unresolved is whether groundwater is a point source under the Act, and therefore requires a company or an individual to obtain a NPDES permit to legally discharge pollutants into groundwater that eventually reaches navigable waters.[xv] More specifically, when a pollutant is discharged from a point source to groundwater, and then through groundwater to surface water, does the CWA control?[xvi]

Hopefully, we will have an answer soon. The Supreme Court heard arguments on Wednesday, November 6th, 2019 in the 9th Circuit Hawaii Wildlife Fund case to determine how the CWA applies when pollution ends up in protected waters indirectly.[xvii] The federal government used whisky punch to support their position that “the law only applies…when the point source is the means of delivering pollutants to navigable waters.”[xviii] When one leaves home with their whisky in a flask, and then pours the flask into a punch bowl at a party, partygoers would not say that the whisky was poured from the bottle.[xix] Not to be left out of the party, lawyers representing the environmental groups countered by arguing that the law sought to keep whisky out of the punch bowl in the first place.[xx]

Accepting the Fourth and Ninth Circuits’ rulings, though much broader interpretations than the Sixth Circuit’s reading of the CWA, would be the approach that more closely honors the language and intent of the CWA text itself. Hopefully the Supreme Court isn’t too distracted at the thought of indulging in a vat of whisky punch to honor Congress’ intent with the CWA. And without clean water, there could be no whisky.

[i] 33 U.S.C.S. § 1251 (2018).

[ii] See 33 U.S.C.S. § 1311(a) (2018); see also 33 U.S.C.S. 1342 (2018).

[iii] See U.S.C.S. § 1342 (2018).

[iv] 33 U.S.C.S. § 1362(12)(A) (2018).

[v] 33 U.S.C.S. § 1251(d) (2018).

[vi] 33 U.S.C.S. § 1251(g) (2018).

[vii] 33 U.S.C.S. § 1362(12), (14) (2018).

[viii] 33 U.S.C.S. § 1362 (12).

[ix] Id.

[x] See Andrew L. Spielman, Rachel Jacobson, H. David Gold, Sarah C. Judkins, Sixth Circuit Holds Clean Water Act Does Not Require Permits for Discharges to Groundwater, WilmerHale (Oct. 1, 2018), https://www.wilmerhale.com/en/insights/client-alerts/20181001-sixth-circuit-holds-clean-water-act-does-not-require-permits-for-discharges-to-groundwater. [https://perma.cc/R5KR-53Z9].

[xi] Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water, 83 Fed. Reg. 34 (Feb. 20, 2018) (to be codified at 40 C.F.R. pt. 122).

[xii] 33 U.S.C.S. § 1365(a)-(b) (2018).

[xiii] See Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115, 2018 U.S. App. LEXIS 27238 (6th Cir. Sep. 24, 2018); see also Tenn. Clean Water Network v. TVA, No. 17-6155, 2018 WL 4559315 (6th Cir. Sep. 24, 2018).

[xiv] See cases cited supra note 13.

[xv] See supra note 10.

[xvi] Joel C. Beauvais, Stacey L. VanBelleghem, Courts Block Coal Ash Suits, Setting Up US Supreme Court Showdown, Latham & Watkins LLP (Sep. 27, 2018), https://www.globalelr.com/2018/09/courts-block-coal-ash-suits-setting-up-us-supreme-court-showdown/. [https://perma.cc/RP7T-9VB8].

[xvii] Adam Liptak, Supreme Court Weighs Limits on Water Pollution Law, The New York Times, Nov. 6, 2019, https://www.nytimes.com/2019/11/06/us/supreme-court-clean-water-act.html.

[xviii] Id.

[xix] Id.

[xx] Id.