(November 21, 2017) - NACWA and 25 other partners joined a brief filed by the City of New York in an appeal pending in the U.S. Second Circuit Court of Appeals, involving a basement backup that allegedly resulted in wastewater seeping into groundwater and then migrating into the Long Island Sound. Pursuant the theory of liability presented in this case, a release of pollutants into groundwater that migrates to hydrologically-connected navigable waters violates the Clean Water Act (CWA).
The brief argues that the Second Circuit should uphold the lower court decision dismissing the suit and rejecting the CWA liability arguments.
The direct hydrologic connection (DHC) theory is arising in CWA litigation across the country with concerning regularity, with many courts confusing the Waters of the United States (WOTUS) jurisdiction test with the CWA point source test. A direct hydrologic connection between groundwater and navigable waters does not eliminate the statutory requirement that the means by which pollutants enter navigable waters must be via a point source; i.e., a discernible, confined and discrete conveyance. While the CWA prohibits indirect discharges from point sources, pollutants still must enter navigable waters by means of some discernible, confined and discrete conveyance—a statutory test that groundwater clearly does not meet.
While addition of pollutants into navigable waters through groundwater does not qualify as a regulated discharge under the statute, it can be addressed by state law and/or other CWA or federal programs.
The DHC theory could potentially require a CWA National Pollutant Discharge Elimination System (NPDES) permit for any source that may release pollutants to groundwater that is hydrologically connected to navigable waters, which would result in a significant expansion of the CWA 402 program, and increase citizen suit exposure. This theory could undermine utilities’ ability to prioritize investments, establishing strict liability independently for each backup or instance of exfiltration.
The fate of this critical issue now lies in the hands of the Second, Fourth, Sixth and Ninth Circuit Courts in four very different factual cases. NACWA has filed briefs in three of these appeals. NACWA is hoping for a solid positive decision in at least one circuit. In the event of negative precedent from another court of appeals, this would result in a split among the circuits and the matter would then be ripe for petition to the US Supreme Court.
Any members with questions can contact Amanda Waters, NACWA’s General Counsel.