In response to a citizen suit filed under the Clean Water Act (“CWA”) by several environmental groups, Duke Energy Carolinas LLC (“Duke Energy”) has filed a motion for certification for interlocutory appeal, asking the United States Court of Appeals for the Fourth Circuit to decide how the CWA addresses aspects of groundwater pollution.

The suit alleges that Duke Energy continues to violate the CWA by unlawfully discharging toxic metals and other pollutants at its Buck Steam Station coal-fired electricity generating plant, which has allegedly leading to the contamination of groundwater. Duke Energy’s interlocutory appeal is asking that the Fourth Circuit adopt the majority view of the First, Fifth, and Seventh Circuits in holding that the CWA does not cover discharges to groundwater, even when those discharges migrate to surface waters via hydrological connection. This appeal arises from an October ruling from the United States District Court for the Middle District of North Carolina that the CWA has jurisdiction over the percolation of pollutants from the Buck Steam Station’s ash pond to surface water through hydrologically connected groundwater.

While this is a matter of first impression before the Fourth Circuit, this issue is being litigated, usually in the form of citizen suits, more and more frequently across the country. One of the more prominent cases on this issue is Hawai’i Wildlife Fund v. County of Maui, a 2014 case out the District of Hawaii. An environmental group brought suit against a wastewater reclamation facility, asking the court to consider groundwater as a conduit for the introduction of pollutants into navigable waters. See Hawai’i Wildlife Fund v. Cnty. of Maui, 24 F.Supp. 3d 980 (D. Haw. 2014). The court opined that “[t]here is nothing inherent about groundwater conveyances and surface water conveyances that requires distinguishing between these conduits under the Clean Water Act. When either type of waterway is a conduit through which pollutants reach the ocean, then there has been an addition of [a] pollutant to navigable waters.” Id. at 994. This issue, known as the “conduit theory,” is currently on appeal before the Ninth Circuit.

If the Fourth Circuit were to disagree with Duke Energy and the majority view, groundwater would be considered within the jurisdiction of the CWA, a departure from past interpretations. This case is Yadkin Riverkeeper Inc. et al. v. Duke Energy Carolinas LLC, case number 1:14-cv-00754.