Jackson Kelly PLLC

Energy and Environment Monitor


November 19, 2018

By: M. Shane Harvey

The Answer Depends on the Jurisdiction


Let’s say you have an unlined pond.  It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit.  But, let’s assume that pollutants in the pond percolate into groundwater.  And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream. 


Image result for fly ash pond


Does your pond constitute a “point source” under the Clean Water Act?  And more to the point, does that migration of pollutants into rivers and streams constitute an illegal discharge of pollutants without a permit?


The answer may depend on the location of the pond.


The law in this area has developed primarily as a result of the Sierra Club’s “Beyond Coal” campaign.  The Sierra Club and affiliated groups have sued multiple coal-fired power plants, arguing that unlined fly ash ponds are unpermitted “point sources” illegally discharging pollutants into rivers and stream via groundwater.  These suits have achieved mixed results.


In the Sixth Circuit, such claims have been flatly rejected.  In Kentucky Waterways Alliance v. Kentucky Utilities Company (6th Cir. Aug. 2, 2018), the Sixth Circuit found that groundwater is not itself a “point source” and that, even if fly ash ponds are point sources, that movement of pollutants via groundwater from ponds to a river is not a discharge “from” a point source. Additionally, in Tennessee Clean Water Network v. Tennessee Valley Authority, (6th Cir. Sept. 24, 2018) the Sixth Circuit found that pond seepage must enter rivers and streams (WOTUS) “directly” from a point source.  In doing so, the Sixth Circuit rejected law from other jurisdictions (such as the Ninth Circuit in Hawaii Wildlife Fund v. County of Maui, (9th Cir. Feb. 1, 2018)) finding that discharges to groundwater are sufficient to attach Clean Water Act liability if there is a “direct hydrologic connection” between the point source and WOTUS.   


The Fourth Circuit, also home to many coal-fired power plants, has taken a different approach.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., (4th Cir. Dec. 7, 2017), the Fourth Circuit bought into the notion that Clean Water Act liability can attach when there is a “direct hydrologic connection” to a WOTUS.  In that case, which involved a ruptured pipeline, the Fourth Circuit found that discharges that move through groundwater before reaching WOTUS may still constitute a discharge of a pollutant from a point source.


However, in Sierra Club v. VEPCO, (4th Cir. Sept. 12, 2018), the Fourth Circuit threw a curve ball in a case involving unlined fly ash ponds.  Consistent with its decision in Upstate Forever, the court concluded that discharges of pollutants into WOTUS via groundwater can violate the Clean Water Act if there is “a direct hydrologic connection between the groundwater and navigable waters.”  However, the Court also found that the coal ash landfills and ponds were not “point sources” merely because they allowed precipitation to percolate through them and into the groundwaterRelying on the statutory definition of “point source,” the court instead ruled that discharges must occur through a “discernible, confined and discrete conveyance” before they are subject to the Clean Water Act and concluded that “diffuse seepage” from fly ash ponds and landfills did not meet that test.


And most recently, in Prairie Rivers Network v. Dynegy Midwest Generation, LLC, (C.D Ill. Nov. 14, 2018), a federal district court in Illinois relied on Seventh Circuit precedent to reject a claim that seepage of pollutants from fly ash ponds, via groundwater, into WOTUS was actionable under the Clean Water Act.


As we have noted in other articles, the regulated community needs certainty on the  scope of the Clean Water Act as it relates to such nontraditional discharges.  The Sierra Club will continue to push for an expansive definition of “point source” – indeed, it has argued that the definition applies also to trains and smoke stacks that allow pollutants to fall into waters.  And, without guidance, it is likely that courts will reach different results on what is or isn’t a point source.  For instance, as demonstrated above, there is currently a split among courts as to whether discharges that reach WOTUS through groundwater require an NPDES permit. 


As we have advocated before, these issues could be addressed by Congress or the EPA.  Likewise, it is likely that the United States Supreme Court may address these issues, at least in part.  Until then, the regulated community will be faced with continued uncertainty and potential litigation. 



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