Aging or absent sewers and other failing infrastructure, including pipes that carry wastewater to treatment plants, are contributing to water quality problems around the country, including across New York state. Although Gov. Andrew Cuomo recently signed legislation providing up to $2.5 billion to help local governments address water quality needs, few people believe that this amount will be sufficient. After all, in January 2016, the U.S. Environmental Protection Agency (EPA) estimated that $271 billion is needed to maintain and improve the nation's wastewater infrastructure. And earlier this year, State Comptroller Thomas P. DiNapoli cited the Department of Health's 2007 estimate that New York's water systems may require nearly $40 billion in repairs and improvements over two decades.

Against this backdrop, it may be tempting to look to the federal Clean Water Act (CWA) to impose liability upon facilities that discharge pollutants to groundwater that is hydrologically connected to surface waters. The so-called “conduit theory” would extend the CWA to cover groundwater that serves as a conduit between an unpermitted discharge and regulated surface waters. This theory is not new. More than 20 years ago, the Seventh Circuit concluded that even groundwater with a hydrologic connection to surface “waters of the United States” is not regulated by the CWA. Vill. of Oconomowoc Lake v. Dayton Hudson, 24 F.3d 962, 965 (7th Cir. 1994). The Fifth and First Circuits have reached similar results. See D.E. Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir. 2001) and United States v. Johnson, 437 F.3d 157 (1st Cir. 2006), vacated on other grounds, 467 F.3d 56 (1st Cir. 2006). However, because of recent and conflicting rulings, CWA liability based upon the conduit theory is receiving renewed attention. In this article we explore these new developments and how CWA liability for discharges to groundwater might affect facilities in New York ranging from slurry pits, concentrated animal feeding operations, retention ponds, and septic systems to accidental spills.

Of course, the CWA prohibits the discharge of pollutants from point sources to “waters of the United States” unless the discharge complies with some provision in the statute. CWA compliance is most commonly achieved by securing a permit from EPA or an authorized state agency such as the New York Department of Environmental Conservation (DEC). Under the CWA, point source is defined as a “discernible, confined, and discrete conveyance.” The definition of “water of the United States” is the subject of immense controversy and confusion. Nevertheless, there is nearly universal agreement among courts, EPA and DEC that isolated groundwater which is not directly connected to a surface water body is not regulated by the federal CWA.