Last week, the Central District of Illinois dismissed a case wherein an environmental group sought to extend liability to a corporation based on a groundwater connection to the Middle Fork River under the Clean Water Act (the “CWA”). Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 18-cv-02148 (C.D. Ill. Nov. 14, 2018). In so doing, the court held that it was bound by the Seventh Circuit’s 1994 decision in Village of Oconomocow Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) wherein the Circuit court had held that discharges into groundwater were not regulated under the CWA. The district court’s decision is in line with the Sixth Circuit’s recent decisions in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018), discussed by this blog here and in contrast to the Fourth Circuit’s decision in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018), discussed by this blog here.

The CWA regulates the discharge of pollutants to navigable waters at point sources, or discrete locations of emissions. While many aspects of this definition have been subject to regulation and consideration, courts have recently struggled with whether point sources discharging into groundwater, which in turn seeps into navigable waters, are themselves regulated by the CWA. That is, courts have been asking whether a source of pollution that has no direct connection to a navigable water, other than through groundwater seepage, is itself a discharge into a water of the United States. This is known as the hydrological connection theory.

In this case, the defendant, Dynegy Midwest Generation (“Dynegy”) owned a retired coal-fired power plant that was located on the west bank of the Middle Fork River in Illinois. When it operated, the plant stored its coal ash, mixed with water, in three unlined pits, some of which extended up to 44 feet into the ground. The plaintiff alleged that the water from these unlined pits had seeped into the groundwater and, in turn, entered the Middle Fork River. The plaintiff suggested that this discharge into the river was a violation of the CWA. However, on Dynegy’s motion to dismiss, the Court disagreed. The Court stated that in 1994, the Seventh Circuit had explicitly considered whether discharges into parking lots and other “artificial ponds” were subject to regulation under the CWA and had determined they were not, even if those artificial water sources eventually found their way via underground connections to navigable waters. The Court said the Seventh Circuit had found such possible connection irrelevant as “the offending discharge was made into groundwater, which is not subject to the CWA.” It thus said that, in this case, despite any evidence of a hydrological connection between the coal ash pits and the Middle Fork River, discharges into the coal ash pit (and thence into the groundwater) were not discharges into waters regulated by the CWA. The Court also cited to the Sixth Circuit’s decisions, referenced above, as supporting its decision.

Separately, the Court also found that this alleged connection was insufficient for there to be a violation of Dynegy’s NPDES permit conditions, which allowed for specified limited discharges into the Middle Fork River. Because the alleged discharges from the coal-ash pits were not discharges into the river, they were not discharges regulated by the CWA, and thus, according to the Court, not violations of Dynegy’s permit conditions.

As of this writing, the parties have not indicated whether they intend to appeal the district court’s ruling. Nonetheless, with the above described circuit split, there is some expectation that the Supreme Court may take this issue up on a writ of certiorari, as courts across the country continue to divide on the meaning of the CWA.

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