Clean Water Current

(September 18, 2018) – A three-judge panel of the US Circuit Court of Appeals for the Fourth Circuit ruled, on September 12, that coal ash impoundments do not qualify as "point sources" under the Clean Water Act (CWA).

Coal combustion residuals (CCRs), commonly known as coal ash, are byproducts of the combustion of coal at power plants by electric utilities and independent power producers. CCRs are disposed of in large ponds and in landfills. In this case, pollutants including arsenic allegedly seeped from the impoundments into groundwater that reached surface waters. 

Environmental groups brought suit under the “direct hydrologic connection” theory of liability alleging that the conveyance of pollutants from a point source – i.e., a coal ash pond - through groundwater to CWA jurisdictional waters triggers the requirement for a CWA Section 402 National Pollutant Discharge Elimination System (NPDES) permit.

The Fourth Circuit held that the NPDES program and “enforcement scheme specifically rely on ‘effluent limitation[s]’ — restrictions on the ‘quantities, rates, and concentrations’ of pollutants discharged into navigable waters…And federal permitting programs under the [CWA] apply these precise, numeric limitations to discrete outfalls and other ‘point sources.’” The court went on to explain:

“When a source works affirmatively to convey a pollutant, the concentration of the pollutant and the rate at which it is discharged by that conveyance can be measured.  But when the alleged discharge is diffuse and not the product of a discrete conveyance, that task is virtually impossible.  Tellingly, the district court in this case concluded candidly that it could not ‘determine how much groundwater reaches the surface waters, or how much arsenic goes from the [plant site] to the surrounding waters.  It could be a few grams each day, or a much larger amount.’  Such indeterminate and dispersed percolation indicates the absence of any facility constituting a discernible, confined, and discrete conveyance. Moreover, it indicates circumstances that are incompatible with the effluent limitation scheme that lies at the heart of the [CWA].”

The decision is yet another in a rapidly expanding body of case law on the extent to which the CWA covers discharges of pollutants to surface waters via groundwater.  There are currently two cert petitions pending before the US Supreme Court that tee up this question.

While NACWA was not involved in this coal ash case, the Association has been closely tracking legal developments around the groundwater jurisdiction issue and is a participant in other litigation.  For more information, please see NACWA’s Litigation Tracking webpage or contact Erica Spitzig, NACWA Deputy General Counsel.