The U.S. Supreme Court agreed on February 19 to hear a case involving whether pollution that moves through groundwater to surface water should be covered under the Clean Water Act.
The U.S. Court of Appeals for the Ninth Circuit ruled in 2018 in Hawaii’s Maui County vs. Hawai’i Wildlife Fund that a municipal wastewater facility violated the Clean Water Act by injecting treated wastewater into the groundwater, some of which entered the Pacific Ocean. The Supreme Court will hear the county’s appeal this fall.
The U.S. Court of Appeals for the Fourth Circuit ruled in similar fashion in 2018 in a South Carolina case involving an underground pipeline that burst in 2014, spilling hundreds of thousands of gallons of gasoline. Nearby rivers, lakes, and wetlands, including the Savannah River, were contaminated by some of the fuel.
But the U.S. Court of Appeals for the Sixth Circuit took a different view in Kentucky. Pollutants from a coal ash retention pond seeped into groundwater that fed into local waterways, but the court ruled only pollutants added directly to navigable bodies of water were regulated under the 47-year-old Clean Water Act.
Typically, discharges to a surface water body require permits under the Clean Water Act, whereas discharges to groundwater are regulated under different laws.
The issue of whether groundwater discharges can pollute surface water has been a hot button issue recently in Washington, D.C. The U.S. Environmental Protection Agency issued an information request on the topic in 2018, and a task force of NGWA members prepared comments that were filed, while also noting states are best suited to regulate groundwater quality. The EPA has yet to take action since the request for comments. The U.S. Congress expressed an interest in providing clarity on the issue at a Senate hearing in 2018 as well.