Clean Water Current

(January 29, 2019) - The U.S. Court of Appeals for the Sixth Circuit denied, on January 17, the environmental groups’ request for rehearing en banc of the Tennessee Clean Water Network v. Tennessee Valley Authority (TVA) case.

In September 2018, in both the TVA and Kentucky Waterways Alliance v. Kentucky Utilities cases, the court soundly rejected the theory that an NPDES permit is required where pollutants are discharged through groundwater that conveys them to navigable waters, explaining that in that instance “[the pollutants] are not coming from a point source; they are coming from groundwater, which is a nonpoint-source conveyance.” As the court explained, groundwater itself cannot be a point source because of its diffuse nature, and as a result “[t]he CWA has no say over that conduct.”

The court went on to emphasize Congress’ clear intent to reserve power over discharges to groundwater to the states, focusing on the Act’s specific purpose to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water resources.”

The environmental groups will have 90 days to file a cert petition with the US Supreme Court, which is currently considering petitions on the decision by the Ninth Circuit in Maui v. Hawaii Wildlife Fund (Case 18-260) and the Fourth Circuit in Upstate Forever v. Kinder Morgan (Case 18-268). 

For more information on this issue, see NACWA Summary: CWA Point Source Liability for Discharge of Pollutants Via Groundwater and NACWA’s brief supporting Maui’s cert petition.

Contact Amanda Waters, NACWA General Counsel, with questions.