Circuit Split: Regulatory Reach of Clean Water Act
On September 24, 2018, the 6th Circuit issued rulings in two cases over the question of how direct a connection there must be between the source of pollution and waters that were allegedly polluted for the Clean Water Act (“CWA”) to apply. The 6th Circuit rulings created a split in the circuits on issue of the reach of the CWA. The 9th and 4th Circuits are on one side holding that CWA is broadly applied, and the 6th Circuit is on the other side finding a narrow interpretation of the act is more appropriate.
In the first 6th Circuit case, Kentucky Utilities Co., the Sierra Club claimed that the utilities’ handling, storage, treatment, and disposal of coal ash violated the Resource Conservation and Recovery Act (“RCRA”) and was an unpermitted discharge of selenium violating CWA. The 6th Circuit allowed the claims under RCRA to continue but rejected claims under CWA. The panel disagreed with the direct hydrological connection theory upheld by the 9th and 4th circuits and found that there must be a point of entry. In the second 6th Circuit case, Tennessee Valley Authority, the panel reaffirmed its prior reasoning and denied the plaintiff’s claim that the path of pollutant through groundwater triggered the CWA.
Earlier this year, on February 2, 2018 and April 12, 2018, the 9th and 4th Circuits, respectively, issued rulings that held that a direct hydrological connection between the point source and waterbody allowed for CWA regulation. The U.S. Supreme Court has previously been asked to review the 9th and 4th Circuit decisions. As a result of the 6th Circuit holding, it is likely that a U.S. Supreme Court decision resolving the split will soon follow.