Groundwater discharges may become subject to the Clean Water Act

The regulatory status of discharges that travel through groundwater to surface water is being considered by federal appeals courts and the EPA.  The answer to the question if these discharges are subject to the Clean Water Act (CWA) will have major implications for industries with sites that have groundwater that discharges to surface water.  Should it be decided these groundwater discharges are considered subject to the CWA, then facilities will require permits under the National Pollution Discharge Elimination System.  A second anticipated reaction will be additional citizen lawsuits.

Recent news on this issue:

• February 1, 2018 – The Ninth Circuit Court of Appeals decided that wastewater injected into the subsurface that ultimately connected though groundwater into the Pacific Ocean by the Maui wastewater treatment plant was considered an unauthorized discharge under the CWA. 
• February 20, 2018 – EPA published a notice in the Federal Register (83 FR 7126) requesting comments on discharges to surface water via groundwater.  The notice provided a mixed history of EPA statements and case law regarding these discharges.
• April 12, 2018 – The Fourth Circuit Court of Appeals provided a decision consistent with the Ninth Circuit February decision that there is a valid claim to bring a CWA suit against a pipeline spill with pollutants that passed through groundwater to reach surface water.

There are multiple outstanding legal decisions on the issue currently pending.  Most notable is a Fourth Circuit case involving arsenic discharging from a closed coal ash landfill through groundwater into surface water and a Sixth Circuit case also involving a closed coal ash landfill discharging through groundwater to surface water in Tennessee. 

How can GHD help?

Our team of environmental, health & safety, and compliance experts can help to understand your potential groundwater to surface water pathways.  We understand the hydrogeology as well as the surface water permitting implications.  We have successfully supported industry in litigation against a claim that a coal ash pond was impacting an adjacent water body by providing that the “discharge posed no threat to health or the environment”.