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Water Tension: When Discharges to Groundwater Migrate to Navigable Waters

Water Tension: When Discharges to Groundwater Migrate to Navigable Waters

Katherine Klaus

Groundwater is an essential natural resource, comprising 30% of the world’s fresh water.[1] Society’s dependence on groundwater is pervasive, as it provides for drinking, irrigation, industry, and more.[2] In 2010, groundwater withdrawals in the United States totaled 79,300 Mgal/d,[3] valued at over 20 billion dollars.[4] Despite the importance of groundwater, no federal law comprehensively protects it from contamination.[5] Even the Clean Water Act (CWA) fails to address groundwater directly.[6] The CWA only prohibits discharges to “navigable waters,” the definition of which does not include groundwater.[7] Yet, there may be an indirect method of overcoming this barrier. Groundwater is often hydrologically connected to navigable surface waters.[8] Therefore, pollutants discharged to groundwater may migrate, eventually reaching navigable waters.[9] Some courts have been willing to find that these discharges violate the CWA.[10] However, there is no universal agreement on the issue. Several district courts in the Fourth Circuit have recently answered this question, reaching different conclusions.[11] The Court of Appeals for the Fourth Circuit has not yet considered this issue.[12] Consequently, this will continue to be a gray area of law in the Fourth Circuit until it takes an appeal and renders a unifying decision. The direction that the Fourth Circuit chooses to take will then have profound implications for CWA regulation moving forward.

This Note will address whether the CWA is triggered when discharges to groundwater migrate to navigable waters, with a focus on recent case law the Fourth Circuit’s federal district courts. Part I will detail the Clean Water Act and highlight the provisions that are most relevant for regulating discharges to groundwater. Part II will outline the problem of groundwater contamination and the Clean Water Act’s flaws regarding discharges to groundwater. Part III will highlight case law in the Fourth Circuit’s federal district courts, which are split on the issue. Part IV will provide predictions and suggestions for how the Court of Appeals for the Fourth Circuit might rule on the issue.

[1] The World’s Water, USGS (Dec. 2, 2016), https://water.usgs.gov/edu/earthwherewater.html.

[2] Molly A. Maupin et al., USDOI and USGS, Estimated Use of Water in the United States in 2010 14 (2014), https://pubs.usgs.gov/circ/1405/.

[3] Id. at 7.

[4] Nat’l Groundwater Ass’n, Groundwater USA 1, http://www.ngwa.org/Events-Education/awareness/Documents/usfactsheet.pdf (last visited Sept. 28, 2017).

[5] Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 570 (1988).

[6] 40 C.F.R. § 230.3 (2015).

[7] Id.

[8] EPA, Getting Up to Speed: Groundwater Contamination 1, https://www.epa.gov/sites/production/files/2015-08/documents/mgwc-gwc1.pdf (last visited Oct. 23, 2017).

[9] Id.

[10] See, e.g., Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 445 (M.D.N.C. 2015) (“This Court agrees with the line of cases affirming CWA jurisdiction over the discharge of pollutants to navigable surface waters via hydrologically connected groundwater, which serves as a conduit between the point source and the navigable waters.”).

[11] Compare Sierra Club v. Virginia Electric and Power Company, 247 F. Supp. 3d 753, 762 (E.D.Va., 2017) (finding that “discharges to groundwater hydrologically connected to surface water are covered by the CWA”) with Upstate Forever v. Kinder Morgan Energy Partners, 252 F. Supp. 3d 488, 494 (D.S.C. Apr. 20, 2017) (finding that “[t]he migration of pollutants through soil and groundwater is nonpoint source pollution that is not within the purview of the CWA”).

[12] Upstate Forever, 252 F. Supp. 3d. at 497.

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