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Does a Discharge to Groundwater Require an NPDES Permit?

Does a Discharge to Groundwater Require an NPDES Permit?. Arkansas Environmental Federation’s Annual Conference By Jordan Wimpy October 4, 2018. Clean Water Act – Strict Liability.

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Does a Discharge to Groundwater Require an NPDES Permit?

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  1. Does a Discharge to Groundwater Require an NPDES Permit? Arkansas Environmental Federation’s Annual Conference By Jordan Wimpy October 4, 2018

  2. Clean Water Act – Strict Liability • “Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” • Clean Water Act, 33 U.S.C. § 1311(a)

  3. The Exception • “Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants …” • Clean Water Act, 33 U.S.C. § 1342(a)(1)

  4. Key Terms • Discharge of Pollutant – • Any addition of any pollutant to navigable waters from any point source • 33 U.S.C. § 1362(12)

  5. Key Terms • Pollutant – • Dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water • 33 U.S.C. § 1362(6)

  6. Key Terms • Navigable Waters – • Waters of the United States (i.e. WOTUS) • 33 U.S.C. § 1362(7)

  7. Key Terms • Point Source – • Any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged • 33 U.S.C. § 1362(14)

  8. So … • A violation of the Clean Water Act occurs when a person • Discharged • a pollutant • into navigable waters • from a point source • without a permit.

  9. Question Presented Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters.

  10. Does a Discharge to Groundwater Require an NPDES Permit? • Current Cases • Hawai’i Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir., Feb. 1, 2018 ), petition for cert. filed, No. _____ (U.S. Aug. 27, 2018) • Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir., Apr. 12, 2018), petition for cert. filed, No. _____ (U.S. Aug. 28, 2018) • Sierra Club v. Virginia Electric and Power Co., slip opinion, No. 17-1952, (4th Cir., Sept. 12, 2018) • Kentucky Waterways Alliance v. Kentucky Utilities Co., 2017 WL 6628917 (E.D. Ky, Dec. 28, 2017), appeal pending, No. 18-5115 (6th Cir.) • Tennessee Clean Water Network v. TVA, 273 F. Supp. 3d 775 (M.D. Tenn Aug. 4, 2017), appeal pending, No. 17-6155 (6th Cir.) • 26 Crown Associates, LLC v. Greater New Haven Reg’l Water Pollution Control Auth., 2017 WL 2960506 (D. Conn, Jul. 11, 2017), appeal pending, No. 17-2426 (2nd Cir.)

  11. Underground Injection Well? • Hawai’i Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir., Feb. 1, 2018 ), petition for cert. filed, No. _____ (U.S. Aug. 27, 2018) • Issue – Does discharge of municipal wastewater via injection well to groundwater that ultimately affects navigable surface waters require an NPDES permit. • Application – NPDES permitting includes circumstances where pollutants reach navigable waters by means other than a point source, such as groundwater. • Test – (1) Discharge from a point source; (2) pollutants “fairly traceable” to a navigable water; (3) pollutants reach navigable water at “more than de minimis” levels

  12. Underground Pipeline? • Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir., Apr. 12, 2018), petition for cert. filed, No. _____ (U.S. Aug. 28, 2018) • Issue – Does discharge of a pollutant from underground pipeline into soil and groundwater that ultimately affects navigable surface waters require an NPDES permit. • Application – CWA and NPDES permitting requirements do not require a discharge “directly” from a point source into navigable waters. • Test – Discharge from a point source into soil or groundwater is subject to permitting so long as it passes through ground water that has a “direct hydrological connection” to navigable waters • Ongoing Migration – Court also reached an interesting conclusion that discharge to soil/groundwater is “ongoing violation” for citizen purposes despite pipe repair and lack of continuing discharge from the “point source”

  13. Coal Ash Pond/Landfill? • Sierra Club v. Virginia Electric and Power Co., slip opinion, No. 17-1952, (4th Cir., Sept. 12, 2018) • Ken. Waterways Alliance v. Kentucky Utilities Co., 2017 WL 6628917 (E.D. Ky, Dec. 28, 2017), appeal pending, No. 18-5115 (6th Cir.) • Tenn. Clean Water Network v. TVA, 273 F. Supp. 3d 775 (M.D. Tenn, Aug. 4, 2017), appeal pending, No. 17-6155 (6th Cir.) • Issue – Does coal ash seeping through and into groundwater that ultimately affects navigable surface waters require an NPDES permit. • Application – • Sierra Club – No, landfill and settling ponds not point sources; but, approved Upstate Forever • Ken. Waterways Alliance – No, migration through soil/groundwater is “non-point” source pollution regardless of “hydrological connection” • Tenn. Clean Water Network – Yes, applied “direct hydrological connection” test*

  14. Combined Sanitary Sewer Overflow? • 26 Crown Associates, LLC v. Greater New Haven Reg’l Water Pollution Control Auth., 2017 WL 2960506 (D. Conn, Jul. 11, 2017), appeal pending, No. 17-2426 (2nd Cir.) • Issue – Does sewage backflow water seeping into groundwater that ultimately affects navigable surface waters require an NPDES permit. • Application – No. The allegations of groundwater-to-navigable waters lacked the required “surface” connection and/or “significant nexus” that Rapanos would require. And, diffuse groundwater cannot itself be a “point source.” • Interesting Notes – • Court proceeded through a Rapanos jurisdictional analysis for groundwater before addressing the groundwater = point source analysis

  15. Takeaways and Considerations • Confusion persists and theories abound – • “Direct Hydrological Connection” vs. “Fairly traceable and more than de minimis” • Groundwater = point source?? • Facts, Facts, Facts – • Maui was the first petition to reach the Supreme Court and, plainly speaking, the facts are tough! • What is EPA’s position? • Maui – DOJ argued that a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of CWA’s [NPDES] permitting requirements.” • 83 Fed. Reg. 7126 (Feb. 20, 2018) – Request for comment of Agency’s previous statements • Question - Does affirmative view of “direct hydrological connection” theory render the boundaries of WOTUS irrelevant?

  16. Just the Facts, Ma’am

  17. Just the Facts, Ma’am • TVA’s Gallatin Fossil Plant

  18. Questions? Jordan Wimpy Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C 425 W. Capitol Avenue, Ste. 1800 Little Rock, AR 72201 501-688-8872 jwimpy@mwlaw.com

  19. P.S. – In Case You Were Wondering?

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