After decades of insisting otherwise and before the U.S. Supreme Court has had a chance to rule on the issue, the U.S. Environmental Protection Agency (EPA) took steps to limit its interpretation of the Clean Water Act’s (CWA) jurisdiction over groundwater pollution. Following a February 2018 request for public comments on revisions to the National Pollutant Discharge Elimination System (NPDES) permitting regime, the agency issued an Interpretative Statement in April 2019 determining that the CWA does not require point-source polluters to obtain permits for releases of pollutants to groundwater, regardless of whether the groundwater remains “hydrologically connected” to surface water.1 The Interpretive Statement applies to point-source polluters in all federal circuits except the Fourth and Ninth Circuits, where the U.S. Supreme Court has granted petitions for writ certiorari to resolve a split in the federal circuit courts regarding this issue.2 June 7, 2019, marks the conclusion of the public comment period that EPA opened with publication of the Interpretive Statement, in which the agency sought input on how it can provide regulatory certainty through a future rulemaking.3
According to EPA, the agency’s administrative record and federal court decisions have generated uncertainty regarding the application of the NPDES permit program to releases of pollutants to groundwater that reach waters that EPA or states otherwise regulate. Indeed, the agency’s current interpretation stands in stark contrast to the position EPA advanced in recent litigation, where the agency argued for a liability rule requiring a “direct hydrological connection” between point sources and navigable waters.4 In its new guidance, EPA determines that the purpose of the CWA does not extend to regulating groundwater because other federal environmental statutes—such as the Safe Drinking Water Act, the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act—already “extensively” regulate groundwater.5 Thus, the agency now concludes that Congress intended for states, and not EPA, to regulate discharges to groundwater from point sources.6
Notably, the agency’s guidance could have significant implications for a range of activities, including aquifer recharge, leaks from sewage collection systems, septic system discharges, treatment systems (e.g., constructed wetlands), spills and accidental releases, manure management and coal ash impoundment seepage.7 Whether the guidance has long-term practical import, however, is up to the Supreme Court, which, as we have noted, is set to weigh in on the CWA’s jurisdiction during its current term.8
In the meantime, interested parties have another chance to provide input regarding further steps that EPA should take to clarify and provide regulatory certainty with respect to its regulation of groundwater under the Clean Water Act; the public comment period closes on June 7, 2019.9
1 Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater, U.S. Environmental Protection Agency (Apr. 12, 2019), at 1, available athttps://www.epa.gov/sites/production/files/2019-04/documents/interpretive_statement_application_of_cwa_npdes_memo _-_signed.pdf.
2 See Petition for Writ of Certiorari, Cnty. of Maui v. Hawai’i Wildlife Fund. et al., No. 18-260 (Aug. 27, 2018); Petition for Writ of Certiorari, Kinder Morgan Energy Partners. L.P. v. Upstate Forever, No 18-268 (Aug. 28, 2018).
3 Docket No. EPA-HQ-OW-2019-0166-0001, https://www.regulations.gov/document?D=EPA-HQ-OW-2019-0166-0001. After the Supreme Court provides “further clarification,” the agency “intends to follow with notice and comment rulemaking.” Interpretive Statement, at 4.
4 Hawai’i Wildlife Fund v. Cnty. of Maui, 881 F.3d 754, 765 n.3 (9th Cir. 2018).
5 Interpretive Statement, at 11, 48-49.
6 Id. at 3.
7 Id. at 6.
8 See Cnty. of Maui v. Hawai’i Wildlife Fund, et al., 886 F.3d 737 (9thCir. 2018), cert. granted, 139 S. Ct. 1164 (U.S. Feb. 19, 2019) (No. 18-260). The Court may not get the chance to rule on the issue, however, as Maui County officials are contemplating a settlement offer from the environmental groups that brought the case. Ryan Finnerty, Maui Lawmakers Defer Resolution to Settle Clean Water Act Lawsuit, Hawaii Public Radio (May 20, 2019), https://www.hawaiipublicradio.org/post/maui-lawmakers-defer-resolution-settle-clean-water-act-lawsuit.
9 Docket No. EPA-HQ-OW-2019-0166-0001, https://www.regulations.gov/document?D=EPA-HQ-OW-2019-0166-0001.