By: Blair M. Gardner
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of the Act. In so doing, EPA has implicitly repudiated an attempt by the previous Obama Administration to establish its nationwide jurisdiction over groundwater based on a “hydrologic connection” between groundwater and surface waters.
As readers of our commentary will recall, the Clean Water Act prohibits the discharge of pollutants from a point source into navigable waters. This blanket prohibition is avoided if the discharger has a permit issued under either §402 (NPDES) or§404 (dredge and fill) of the Act. The definition of both “discharge” and “pollutant” are essentially unlimited, while the meaning of “point source” has enlarged primarily through judicial interpretation of the Act. What constitutes “navigable waters” has been the subject of three Supreme Court decisions between 1985 and 2006, plus a titanic struggle of the federal agencies to define “waters of the United States” (WOTUS) since that time.
The prior administration attempted to provide a unifying theory to all of this by defining WOTUS expansively and connecting those waters hydrologically. A major study commissioned by EPA and conducted by several hundred scientists over three years endorsed the concept of the hydrologic connection waters in 2015. By identifying the effect on surface waters by discharges into groundwater, EPA possessed a theory to regulate the entire hydrologic cycle through which all water passes. EPA’s new interpretative rule rejects this basis for asserting control over all water. Instead, it focuses on the text of the Clean Water Act and concludes that the exclusion of the word “groundwater” from the definition of “navigable waters” indicates that Congress did not intend to regulate discharges directly to groundwater. In addition, the interpretative rule reviews the legislative history of the Clean Water and identifies provisions that attempted to include groundwater but were rejected. Finally, it points to the fact that the statute leaves some aspects of water regulation – broadly, non-point source regulation – to the states. It then concludes that groundwater regulation better fits into this category under the statutory scheme of the Act.
To more casual observers, this issue might seem to have as much meaning as a medieval theological dispute. In fact, it has a very practical and real meaning. If a discharge from a point source, such as well, into groundwater is controlled by the Clean Water Act, then anyone who performs that discharge will be required to secure an NPDES permit under §402. Because the discharge will diffuse unpredictably into groundwater before emerging – if ever – into surface waters, establishing the effluent limitations applicable to such discharges could be extraordinarily difficult.
Finally, the controversy surrounding the appropriate regulation of discharges via groundwater is not theoretical. A case, County of Maui v. Hawaiʿi Wildlife Fund is scheduled to be heard by the Supreme Court beginning in the fall of 2019. The single question that that Court has identified for argument is “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a non-point source, such as groundwater.” Although recent news reports indicate that the environmental organizations that initiated the action against the county are interested in settling, the issue will remain ripe for decision. The Fourth and Sixth Circuits have decided cases on similar facts to those presented in the County of Maui. Those courts reached opposite conclusions. Because of the circuit division, this is reason enough for the Supreme Court to address the issue. EPA’s new interpretative rule will give the Court a clear analysis to follow.