Federal Water Tap, September 17: Appeals Court Says Dominion Coal Ash Ponds Not Regulated by Clean Water Act

The Rundown

A federal appeals court further muddies the question of groundwater and the Clean Water Act. The House passes a big water infrastructure package. Near the end of the session, a gusher of water-related bills in the House. An EPA environmental justice advisory committee makes water infrastructure recommendations. The EPA adds five sites to the Superfund list and recommends six more. The USGS updates its progress on a national water census. And lastly, the current farm bill expires on September 30.

“Here, the arsenic was found to have leached from static accumulations of coal ash on the initiative of rainwater or groundwater, thereby polluting the groundwater and ultimately navigable waters. In this context, the landfill and ponds were not created to convey anything and did not function in that manner; they certainly were not discrete conveyances, such as would be a pipe or channel, for example. Indeed, the actual means of conveyance of the arsenic was the rainwater and groundwater flowing diffusely through the soil. This diffuse seepage, moreover, was a generalized, site-wide condition that allowed rainwater to distribute the leached arsenic widely into the groundwater of the entire peninsula. Thus, the landfill and settling ponds could not be characterized as discrete ‘points,’ nor did they function as conveyances.” — Judge Paul Niemeyer in a 3-0 opinion that Dominion Energy’s coal ash ponds should not be regulated under the Clean Water Act, even though arsenic leaches from them into groundwater and then into local creeks and rivers.

By the Numbers

5: Sites added to the Superfund list. Sites in Indiana, Mississippi, Ohio, Tennessee, and Texas. Groundwater is contaminated at all of the sites except the one in Tennessee.

Being added to the Superfund list is the first step in a long slog towards cleanup. Being listed does not assign responsibility to a particular entity nor does it guarantee cleanup actions. (U.S. Environmental Protection Agency)

6: Sites proposed for addition to the Superfund list. Comments on the proposal are due November 13. (EPA)

33.9: Inches of rain, as of Sunday afternoon, recorded in Swansboro, North Carolina because of Hurricane Florence. (National Weather Service)

News Briefs

Appeals Court Rules on Groundwater Pollution Case
Coal ash ponds owned by Dominion Energy, though they leach arsenic into groundwater which flows into the Elizabeth River, do not violate the Clean Water Act, according to a ruling from a federal appeals court.

In overturning a lower court’s decision, the three Fourth Circuit judges who heard the case added to a growing body of appeals court rulings on groundwater and the Clean Water Act.

The question at hand: if pollutants from a point source, like a coal ash pond, travel through groundwater and eventually enter a river or lake, should the point source be regulated under the Clean Water Act?

The key phrases in the law for the Fourth Circuit are “direct hydrological connection” and “discrete conveyance.” In the Dominion case, the judges concluded that the connection between the coal ash, groundwater, and river were not direct enough and not measurable — “diffuse” in their words, not discrete and thus not a point source. (The Clean Water Act explicitly regulates point sources.)

Earlier this year, the Fourth Circuit ruled that an oil spill that contaminated groundwater that then flowed to a river was regulated by the Clean Water Act because there was a direct connection to the river.

Perceived inconsistencies — between appeals court rulings and the Clean Water Act — have prompted, in the last few weeks, the losing sides to petition the U.S. Supreme Court to decide the matter.

In context: U.S. Courts Issue Contradictory Rulings on Groundwater and the Clean Water Act

House Passes Big Water Infrastructure Bill
After a bipartisan compromise, the House moved quickly to pass the expansive America’s Water Infrastructure Act.

Among its many provisions — including reservoirs, levees, dam safety, dredging, invasive species, drinking water systems, and more — the bill:

• Authorizes $4.4 billion over three years for the Drinking Water State Revolving Fund, a low-interest loan program that is the preeminent source of federal assistance for water systems. Loans can be extended to 40 years for disadvantaged communities.
• Authorizes $3.7 billion in Army Corps projects and revokes authorization for $4 billion in projects.
• Authorizes a National Academy of Sciences study, due in two years, on moving the Army Corps to another federal agency.
• Authorizes a National Academy of Sciences study on the economic calculations that the Army Corps uses to evaluate projects.
• Requires a report on a pilot study at Coyote Valley Dam, in California, to use weather forecasting to operate the dam more effectively for water storage and flood control.
• Requires a report, due in two years, to identify “intractable” water systems — those that serve fewer than 1,000 people and whose operator has failed to maintain them so as to present a public health hazard.
• Authorizes $15 million over three years for a grant program to replace school drinking water fountains.
• Requires an emergency response plan from drinking water systems serving more than 3,300 people. The plan should reflect risks from cyberattack, chemical spills, natural hazards, and more.
• Requires future EPA drinking water needs assessments to consider the cost of replacing lead service lines.

Water Bill Gusher in the House
The clock is running out on the 115th Congress. Nonetheless, House members introduced or acted on a half dozen water-related bills in the last week.

• The House passed the Bureau of Reclamation Transparency Act, which requires the bureau to file a report every two years on maintenance of its facilities.
• California Democrats introduced the San Francisco Bay Restoration Act, which establishes a San Francisco Bay program office within EPA Region 9 and provides $25 million per year for grants to state, local, and nonprofit agencies for restoration projects.
• Rep. Tony Cardenas (D-CA) introduced a bill to set a deadline for the EPA to establish a drinking water standard for perchlorate. The agency is under a court-ordered deadline but requested an extension.
• Rep. Brian Mast (R-FL) introduced the Stop Harmful Discharges Act, which changes the operating guidelines for federal reservoirs in central and southern Florida to include public health as a primary consideration. Nutrient-rich water discharged from the reservoirs contributes to the algal blooms in the states estuaries, rivers, and coasts. The nutrients come from farms, septic tanks, and urban runoff.

Studies and Reports

USGS Updates Progress on National Water Census
Congress ordered a full accounting of the nation’s water use and availability in 2009, but “much work remains” to complete the task, according to the U.S. Geological Survey’s latest update.

In its report to Congress, the USGS describes actions taken from 2013 to 2017 to better understand groundwater resources, river basin changes, data management, and water use.

The report also lays out a work program for the next five years. On the agenda: groundwater and surface water modeling, an inventory of water moved between river basins, and how changes in river flows affect ecology.

Measuring Groundwater Via Gravity
The USGS published an interesting fact sheet on its use of gravity measurements to track changes in groundwater levels.

These are not the satellite-based measurements that ride on the GRACE mission. The USGS deploys these sensors on the ground, where they can see groundwater storage changes at smaller scale, even areas of a few square miles.

Environmental Justice Council Report
Congress needs to invest more money in clean water systems for poor and minority communities, according to a draft report from the EPA’s environmental justice advisory council.

The report recommends actions the EPA can take to extend clean water access. But it acknowledges that money is the grease that turns the wheels.

“Without more money, very few of our recommendations will be feasible,” the report states.

A final version will be available in two to three weeks, Jill Witkowski Heaps, the chair of the council’s working group, told Circle of Blue.

On the Radar

Farm Bill Expiration
The current program expires on September 30. If the House and Senate cannot compromise, Congress has two options: pass a short-term extension, which would buy a few weeks or months of negotiating time, or let the bill expire.

The National Sustainable Agriculture Coalition runs through what happens to certain programs if the bill does expire. Hardest hit would be conservation programs, some of which would not be able to enroll new farmers.

Water-for-Energy Prize Competition
The Department of Energy will host a public meeting on October 25 to discuss potential prize competitions to elicit new technologies for meeting water and energy challenges.

Topics of interest to the DOE: desalination, cleansing oil and gas wastewater, reducing water use for electricity generation, decreasing energy use for wastewater treatment, and off-grid water solutions.

The meeting will be at the National Renewable Energy Laboratory, in Golden, Colorado.

Federal Water Tap is a weekly digest spotting trends in U.S. government water policy. To get more water news, follow Circle of Blue on Twitter and sign up for our newsletter.

Brett Walton

Brett writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States. He also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news. He is the winner of two Society of Environmental Journalists reporting awards, one of the top honors in American environmental journalism: first place for explanatory reporting for a series on septic system pollution in the United States(2016) and third place for beat reporting in a small market (2014). He received the Sierra Club’s Distinguished Service Award in 2018. Brett lives in Seattle, where he hikes the mountains and bakes pies. Contact Brett Walton