ELR Citation: ELR 21411
No(s). 96-657-AS (D. Or. Apr 9, 1997)

The court holds that discharges to groundwater are not subject to regulation under the Federal Water Pollution Control Act's (FWPCA's) national pollutant discharge elimination system (NPDES) program. The court first holds that discharges of pollutants into groundwater are not subject to the NPDES permit requirement even if that groundwater is hydrologically connected to surface water because FWPCA §402, which establishes the NPDES permitting system, makes no reference to groundwater. Congress considered "ground waters" to be a different category of waters from "navigable waters" and did not intend to regulate groundwater in any form. The U.S. Environmental Protection Agency has not promulgated regulations asserting that hydrologically connected groundwater can be subject to NPDES permitting. And Oregon's environmental agency has clearly interpreted the FWPCA's NPDES program as not applying to discharges to groundwater.

The court next notes that should the Ninth Circuit conclude that discharges of pollutants through hydrologically connected groundwater are subject to the NPDES permit requirement, the residues at issue here would be a readily identifiable point source. The unlined brine pond in this case is a confined and discrete conveyance within the FWPCA's definition of "point source." The court also notes that were the NPDES program to apply, the ongoing migration of pollutants from an old brine pit's residues through groundwater to surface water without an NPDES permit would constitute an ongoing FWPCA violation. The discharge of pollutants is ongoing if the pollutants continue to reach navigable waters, even if the discharger is no longer adding pollutants to the point source itself. Last, the court grants the parties' motion for the court's declaratory judgment to be certified for interlocutory appeal and stays the proceedings until either the Ninth Circuit decides the interlocutory appeal, the Ninth Circuit declines to exercise its discretion to hear the interlocutory appeal, or one or both of the parties informs the court that no interlocutory appeal was taken.

Counsel for Plaintiff
Bill Kloos
Johnson, Kloos & Sherton
767 Willamette St., Ste. 203, Eugene OR 97401
(541) 687-1004

Counsel for Defendant
Tom Lindley
Miller, Nash, Wiener, Hager & Carlsen
111 SW 5th Ave., Portland OR 97204
(503) 224-5858