The U.S. Court of Appeals for the Sixth Circuit last month contributed two opinions to the growing cacophony over Clean Water Act (CWA or the act) jurisdiction, both holding that the act does not regulate pollution that reaches surface water via groundwater. In Kentucky Waterways Alliance v. Kentucky Utilities and Tennessee Clean Water Network v. Tennessee Valley Authority, the court rejected the plaintiff environmental groups’ claims that the migration of substances, through groundwater, from dewatered coal ash ponds to nearby rivers constituted unpermitted point source discharges into waters of the United States. Though these holdings are clear, their effect on future water pollution disputes is not: both opinions were countered by vigorous dissents, and both run directly contrary to decisions issued by other circuit courts this year.
The Sixth Circuit’s two decisions relied largely on its finding that groundwater cannot constitute a “point source” as defined by the Clean Water Act. Writing for a three-judge panel, Judge Richard F. Suhrheinreich expressly rejected this argument advanced by the plaintiffs in Kentucky Waterways, holding that groundwater, a “diffuse medium,” does not fit within the act’s definition of a point source: a “discernible, confined and discrete conveyance,” see 33 U.S.C. Section 1362(14). Likewise, Suhrheinreich found the karst—weathered, porous limestone rock—which underlies the ash ponds and hastens the movement of groundwater still does not render that groundwater a point source, as the underground fissures are neither discernible, confined, nor discrete.
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