Court Finds the Clean Water Act Covers Discharges to Groundwater Hydrologically Connected to Surface Waters, But Requires Monitoring Instead of Penalties
Under the Clean Water Act (“CWA”), it is well established that any entity discharging pollutants into the surface waters of the United States from a “point source” must obtain a permit. But courts have disagreed on whether the CWA also encompasses groundwater that is hydrologically connected to surface water. Last week, a federal district court in Virginia followed a line of cases in holding that the CWA does cover the discharge of pollutants to groundwater that is hydrologically connected to surface water. Sierra Club v. Va. Elec. & Power Co., Civil Action No. 2:15-CV-112 (E.D. Va. Mar. 23, 2017).
In the case, the Sierra Club alleged that Virginia Electric and Power Company, doing business as Dominion Virginia Power (“Dominion”), violated the CWA and its state permits by discharging arsenic from several coal ash piles into groundwater which had a direct hydrological connection to surrounding surface waters. Dominion argued that the CWA did not regulate groundwater and that the coal ash piles were not “point sources” under the CWA. The Court found that there was a “direct hydrological connection” between the groundwater at the Dominion site and the surface waters adjacent to the site. In addition, water sampling demonstrated that the coal ash piles leaked arsenic into the groundwater that reached these surface waters.