The U.S. Court of Appeals for the Sixth Circuit last month contributed two opinions to the growing cacophony over Clean Water Act (CWA or the act) jurisdiction, both holding that the act does not regulate pollution that reaches surface water via groundwater. In Kentucky Waterways Alliance v. Kentucky Utilities and Tennessee Clean Water Network v. Tennessee Valley Authority, the court rejected the plaintiff environmental groups' claims that the migration of substances, through groundwater, from dewatered coal ash ponds to nearby rivers constituted unpermitted point source discharges into waters of the United States. Though these holdings are clear, their effect on future water pollution disputes is not: both opinions were countered by vigorous dissents, and both run directly contrary to decisions issued by other circuit courts this year.

The Sixth Circuit's two decisions relied largely on its finding that groundwater cannot constitute a “point source” as defined by the Clean Water Act. Writing for a three-judge panel, Judge Richard F. Suhrheinreich expressly rejected this argument advanced by the plaintiffs in Kentucky Waterways, holding that groundwater, a “diffuse medium,” does not fit within the act's definition of a point source: a “discernible, confined and discrete conveyance,” see 33 U.S.C. Section 1362(14). Likewise, Suhrheinreich found the karst—weathered, porous limestone rock—which underlies the ash ponds and hastens the movement of groundwater still does not render that groundwater a point source, as the underground fissures are neither discernible, confined, nor discrete.

The plaintiffs in Kentucky Waterways advanced a second theory, also rejected by the court—that the CWA prohibits migration of pollutants from a point source to a water body through a nonpoint source, provided a “hydrological connection” exists between the point source and the receiving water body. The majority instead adopted a narrower reading of the statute, one that “leaves no room for intermediary mediums to carry the pollutants.” To be considered a regulated discharge from a point source to waters of the United States, the panel held, pollutants must discharge directly from the point source to those waters. Therefore, the pollutants' migration through groundwater—a nonpoint source—impermissibly disrupts the pollutants' deposition from a point source to the river. In making this finding, Suhrheinreich distinguished then-Justice Antonin Scalia's plurality opinion in Rapanos v. United States, which noted importantly that the CWA's prohibition on the “addition of any pollutant to navigable waters” does not include the word “directly.” In Rapanos, the Sixth Circuit noted, “intermediary point sources [did] not break the chain of CWA liability.” However, Scalia was silent on the effect of intermediary nonpoint sources such as groundwater.

The Sixth Circuit likewise rejected the plaintiffs' theory of liability based on a “hydrological connection” in Tennessee Clean Water Network, reversing the lower court's holding. Here, too, the panel found that pollutants discharged to a river from groundwater were discharged from a nonpoint sourc—and therefore not a CWA violation—regardless of where they originated. The panel did not reach the question of whether the coal ash ponds from which the pollutants entered the groundwater were point sources, having determined the nonpoint source intermediary broke the chain of liability. However, footnotes in both opinions suggested the majority's skepticism that coal ash ponds could be considered “conveyances,” a prerequisite for finding them point sources. Both footnotes cite a September Fourth Circuit opinion, Sierra Club v. Virginia Electric & Power, which “held that a landfill and settling pond did not serve as point sources simply because they allowed arsenic from coal ash to leach into groundwater and then to navigable waters.” To be considered a “conveyance,” the Sixth Circuit implies, a potential point source must “take or carry” the pollutants in question; ash ponds, in contrast, “are designed to store coal ash in place.”

While footnotes in Kentucky Waterways and Tennessee Clean Water Network suggest the opinions' agreement with Fourth Circuit precedent, the opinions conflict, Suhrheinreich acknowledged, with other recent decisions of both the Fourth and Ninth circuits. In Upstate Forever v. Kinder Morgan Energy Partners, the Fourth Circuit held that natural diffusion of pollutants from a ruptured gas pipeline into groundwater, and from there into navigable waters “hydrologically connected” to the groundwater, rendered those discharges CWA violations. The court there determined that the indirect, intermediary conveyance did not sever defendants' liability for point source discharges from the pipeline. Similarly, the Ninth Circuit in Hawai'i Wildlife Fund v. County of Maui found a hydrological connection where wastewater contained in injection wells reached the Pacific Ocean by migrating through groundwater. The parties agreed that the injection wells were point sources, and though the wells did not discharge directly into the ocean and groundwater served as a necessary nonpoint source conveyance, the court still found the County of Maui liable for unpermitted point source discharges because of the hydrological connection found insufficient in Kentucky Waterways and Tennessee Clean Water Network.

In addition, Judge Eric L. Clay suggested in dissent that perhaps Kentucky Waterways and Tennessee Clean Water Network are not so neatly distinguishable from Rapanos. Echoing Scalia's language, Clay posits that because the CWA does not require a showing that pollutants are discharged “directly into navigable waters” from a point source, neither should the courts. To interpret this stringent requirement—direct discharge—from the surrounding language is to pull an elephant from a mousehole, fundamentally altering the act's prohibition on point source discharge into waterways. Perhaps the Supreme Court will weigh in on the question, accepting Upstate Forever or Hawai'i Wildlife Fund for review on certiorari, and provide resolution to the circuits' competing interpretations of the Clean Water Act. For now, what constitutes a discharge into waters of the United States from a point source remains strongly debated.

Kathleen M. Kline, an associate at Greenberg Traurig, is a litigator focusing on complex matters including environmental litigation, securities and derivative actions, and professional liability. She has represented clients in a variety of matters, including CERCLA and Clean Water Act lawsuits, securities class actions, shareholder derivative matters, disputes regarding professional liability of insurance agents and brokers, and products liability litigation. Contact her at [email protected].