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November 1st, 2018
environmental
SIXTH CIRCUIT REJECTS HYDROLOGICAL CONNECTION THEORY AS BASIS FOR CWA LIABILITY

The 6th U.S. Circuit Court of Appeals has ruled the Clean Water Act (CWA) does not apply to pollutants that travel through groundwater before entering navigable waters.  Tennessee Clean Water Network, et al. v. Tennessee Valley Authority (TVA), Case No. 17-6155 (6th Cir., September 24, 2018).  The ruling comes less than two weeks after a similar ruling by the 4th Circuit, which found discharge of arsenic from a coal ash storage site through groundwater into surrounding waters did not violate the CWA and did not require a NPDES permit.  Sierra Club v. Virginia Electric & Power Co., No. 17-1895 (4th Cir., September 12, 2018). 

In the TVA case, the 6th Circuit reversed the lower court’s finding that TVA’s failure to obtain a permit to discharge wastewater from its coal ash storage sites violated the CWA.  The lower court reasoned when groundwater is hydrologically connected to navigable waters, and the hydrological connection is “direct, immediate, and can be generally traced,” discharge from a point source without a permit violates the CWA as a matter of law.

The 6th Circuit rejected the “hydrological connection theory,” adopting its rationale in a companion case, Kentucky Waterways Alliance v. Kentucky Utilities Co., Case No. 18-5155, issued the same day.  The Court noted the CWA regulates discharges “from point sources into navigable waters.”  The Court found the use of the word “into” indicates directness and a point of entry.  As a result, the Court reasoned the CWA only applies when pollutants are added directly into navigable waters.

Earlier this year, the 4th Circuit applied the hydrologically connected theory to invoke liability under the CWA in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018).  The 9th Circuit has similarly found the CWA applies to wastewater injected underground that migrates through groundwater into the Pacific Ocean.  Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018).

Petitions for writ of certiorari are pending in both the Upstate Forever and County of Maui cases.  The 6th Circuit’s ruling in TVA increases the likelihood the United States Supreme Court may soon determine whether the CWA’s regulatory power is limited to regulating direct pollution releases from discrete and defined pipes, tunnels and drains into federally protected water or extends to indirect releases via groundwater.
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