Committee Report
Water Resources
Supreme Court Rules Discharges to Groundwater Regulated under the Clean Water Act
june 2020
By OCA’s Water Committee Chair Sarah Liljefelt
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In 2018, the Clean Water Act “The Agency’s view is that the categorically excluded from the CWA’s (CWA) jurisdiction was flipped on best, if not the only, reading of coverage.” However, the EPA made clear its head in Oregon when the Ninth the statute is that all releases that it would apply the Ninth and Fourth Circuit Court of Appeals issued a Circuit decisions within those jurisdicto groundwater are excluded decision endorsing the “groundwater from the scope of the NPDES tions until receiving further clarification conduit theory.” While discharges of program, even where pollutants from the Supreme Court. pollutants into groundwater has hisare conveyed to jurisdictional The United States Supreme Court torically not been regulated under the surface waters via groundwater. issued its decision on April 23, 2020, CWA, proponents argue that such disOn this view, because the CWA ruling that discharges to groundwacharges should be regulated when clearly evidences a purpose not to ter may be regulated under the CWA, groundwater acts as a “conduit” regulate groundwater, and because but only in more limited circumstances between the discharge of a pollutant groundwater is extensively than the broad test adopted by the Ninth and jurisdictional Waters of the regulated under other statutory Circuit. The Supreme Court set forth United States (WOTUS). In Hawaii regimes…any circumstance in a standard by which a CWA discharge Wildlife Fund v. County of Maui, the which a pollutant is released from permit is required if “the addition of Ninth Circuit held that the County’s a point source to groundwater is the pollutants through groundwater injection of treated wastewater into categorically excluded from the is the functional equivalent of a direct wells, a portion of which traveled CWA’s coverage.” discharge from the point source into through groundwater approximately navigable waters.” The Court explained a half-mile and reached the Pacific that time and distance are the most important factors, and Ocean, required permitting under the Clean Water Act provided an example where the standard “clearly applies” because the discharge was “fairly traceable” to the injection in the case of a pipe that ends a few feet from a navigable wells and not de minimis. The Fourth Circuit Court of Appeals has also embraced the groundwater conduit theory, water, and the pollutant emitted from the pipe travels to the navigable water those few feet through groundwawhile the Sixth Circuit has rejected it. ter. Alternatively, the Court held that the standard likely The County appealed the Ninth Circuit’s decision to would not apply in a case where the pipe ends 50 feet from the United States Supreme Court. While the appeal a navigable water, the pollutant mixes with other materials was pending, the United State Environmental Protecin groundwater and the pollutant reaches navigable waters tion Agency (EPA) issued a guidance document in 2019 many years later. The Court remanded the case to the Ninth rejecting the groundwater conduit theory. The EPA’s interCircuit to apply the “functional equivalent” test. pretive statement was published in the Federal Register, Both EPA and the County of Maui argued that the Court’s stating, “The Agency’s view is that the best, if not the only, interpretation will expand the CWA and will require reading of the statute is that all releases to groundwater permits for all injection wells and septic systems. The Court are excluded from the scope of the NPDES program, even did not believe that such an expansion will occur based where pollutants are conveyed to jurisdictional surface on EPA’s history of requiring permits for some groundwawaters via groundwater. On this view, because the CWA ter discharges but not others. Thus, the Supreme Court’s clearly evidences a purpose not to regulate groundwater, decision leaves a lot of discretion to the state and federal and because groundwater is extensively regulated under permitting programs, as well as the courts to resolve litigaother statutory regimes…any circumstance in which a tion concerning groundwater discharges. • pollutant is released from a point source to groundwater is www.orcattle.com | Oregon Cattleman
