Implications
The issue is now ripe for Supreme Court review. In fact, a certiorari petition had been filed with the Supreme Court for review of the Ninth Circuit's Maui decision. A petition was also filed challenging the Fourth Circuit's decision in Upstate Forever. Until the issue is resolved, practitioners and the regulated community should be aware of whether their particular jurisdiction may apply the groundwater conduit theory. Depending on the jurisdiction, there can be very different CWA permit requirements placed on the same types of businesses for the same kinds of discharges. This is a critical issue for companies whose operations can result in discharges to groundwater through spills, accidental discharges, and seepage from retention ponds. Under the groundwater conduit theory, these discharges are subject to regulation under the CWA when pollutants migrate through groundwater to navigable waters. Therefore, businesses should consider whether they are discharging to groundwater that is hydrologically connected to navigable waters.
The potential impact of the groundwater conduit theory cannot be overstated. These newly defined "discharges" would be difficult to anticipate -- and seek permit coverage for -- because groundwater pathways to navigable waters may only be discernible after the fact. Spilling or leaking materials conveyed by groundwater or subsurface flow to navigable waters may suddenly require NPDES permits. In addition, adopting this theory would potentially impact the settlement of CWA suits. Plainly, the groundwater conduit theory increases the potential for successful CWA citizen suits, which generally provide environmental groups with a more straightforward route to establishing liability, and therefore shifts the leverage to plaintiffs in settlement negotiations that almost always resolve these disputes, given the fee-shifting provisions available to successful plaintiffs.
Originally published in Environmental Protection
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