2020 Environmental Real Estate IssuesRecent cases illustrate the need for the U.S. Supreme Court to decide if the Clean Water Act (CWA) applies to discharges that reach surface water through groundwater.  If it decides the issue, the decision may also clarify the meaning of “point source” in the CWA.

Appellate Courts Are Split regarding the Hydrological Connection Theory
The 6th Circuit Court of Appeals recently analyzed the “hydrological connection theory” and held the CWA “does not extend liability to pollution that reaches surface water via groundwater” in two CWA citizen suit cases decided on the same day; Kentucky Waterways Alliance v. Kentucky Utilities and Tennessee Clean Water Network v. Tennessee Valley Authority.  The same three judge panel decided the cases and the same judge dissented in each case.  The Kentucky Waterways majority opinion has an extensive discussion of the “hydrological connection theory” and explains why the 6th Circuit rejects it.

In rejecting the hydrological connection theory, the 6th Circuit majority acknowledged its disagreement with decisions in CWA citizen suit cases from the 4th Circuit (Upstate Forever v. Kinder Morgan) and the 9th Circuit (Hawai’i Wildlife Fund v. City of Maui).  The dissent argued the other circuit courts were correct.

Coal Ash Ponds and the CWA
The 6th Circuit decisions relate to coal ash storage ponds, as does another recent 4th Circuit case, Sierra Club v. Virginia Electric Power.  As a 4th Circuit case, Virginia Electric had to accept the hydrological connection theory due to Upstate Forever, but Virginia Electric still dismissed the CWA claims by holding coal ash ponds, unlike the ruptured pipeline in Upstate Forever, were not “point sources,” thus precluding CWA applicability.

A footnote in the 6th Circuit’s Kentucky Waterways majority opinion indicated likely agreement with Virginia Electric that coal ash ponds were not point sources; the dissent in Kentucky Waterways embraced the hydrological connection theory and concluded coal ash ponds should be considered “point sources” under the CWA.

The recent coal ash decisions acknowledge potential environmental issues due to pollutants from coal ash ponds entering surface water through groundwater.  The decisions indicate the Resource Conservation and Recovery Act (RCRA) and its regulations apply to coal ash, a solid waste.  In Virginia Electric, the 4th Circuit said Sierra Club could have sued under RCRA’s citizen suit provision but did not.   In contrast, Kentucky Waterways had also sued under RCRA, and the 6th Circuit determined the RCRA claim should go forward.

Opportunity for Clarification by the Supreme Court
The U.S. Supreme Court should agree to hear one or more of these cases.  As discussed in my September 10, 2018 Alert, requests for Supreme Court consideration were filed in Upstate Forever and Hawai’i Wildlife Fund in late August.  I expect requests from the environmental groups in the other cases.
By choosing to hear one of these cases, the Supreme Court could decide if the CWA applies to pollution that reaches surface water via groundwater.  It could also provide clarification as to what is a “point source” under the CWA.

For a copy of Kentucky Waterways http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf
For a copy of Tennessee Clean Water http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf
For a copy of Virginia Electric http://isysweb.ca4.uscourts.gov/isysquery/9e3ad262-ff24-4d05-b5e8-a4e2d78d049e/1/doc/171895.p.pdf#xml=http://New-ISYS/isysquery/9e3ad262-ff24-4d05-b5e8-a4e2d78d049e/1/hilite/