March 2020 – Is Groundwater

Is Groundwater a Water of the United States?

The simple one-word answer to the headline question is “No.” The long-awaited Waters of the United States (WOTUS) Rule was signed on January 23, 2020. The new regulation makes clear that the federal government, with few exceptions, will rely on states to regulate groundwater as states see fit. But like everything these days, a regulation intended to clarify, appears to be already the target of interpretation. Does the new regulation mean that groundwater is not regulated at all? Absolutely not, of course.

There are 12 categories of waters that the US EPA and the Army Corps of Engineers highlighted as being categorically excluded from WOTUS, including groundwater and groundwater drained through subsurface drainage systems. With the final rule in effect, the agencies contend that a single regulatory scheme once again covers the U.S. The prior attempt at clarity, the Obama administration’s WOTUS rule, is being heavily litigated and has resulted in a patchwork of injunctions leaving just under half the country under the Obama classification system, while a slightly larger number of states had been operating under the system in place before the Obama-era rule. 

US EPA Administrator Wheeler, and R.D. James, Assistant Secretary of the Army for Civil Works, signed the rule and US EPA submitted it for publication in the Federal Register (FR). The official version will be published in a forthcoming FR publication, which will appear on the Government Printing Office’s govinfo website (https://www.govinfo.gov/app/collection/fr) and Regulations.gov (https://www.regulations.gov) in Docket No. EPA‑HQ‑OW‑2017‑0203. The public docket for the new rule can be viewed online under Docket ID No. EPA‑HQ‑OW‑2018‑0149. The docket consists of documents referenced in the new WOTUS Rule and other information related to this action. 

The pre-publication version of the rule is more than 300 pages long and mentions “groundwater” more than 100 times. The new rule notes that members of Congress were aware when they drafted regulations that different types of the nation’s waters would be subject to different degrees of federal control. For instance, in past House debates regarding a proposed and ultimately failed amendment to one applicable rule to prohibit the discharge of pollutants to groundwater in addition to navigable waters, Representative Don H. Clausen stated, “Mr. Chairman, in the early deliberations within the committee which resulted in the introduction of H.R. 11896, a provision for groundwaters … was thoroughly reviewed and it was determined by the committee that there was not sufficient information on groundwaters to justify the types of controls that are required for navigable waters …118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).  

Legal minds nationwide will be pouring over the language of the rule and its application potential for the next several years. No doubt virtually every environmental law firm and consultancy will have something to say about the rule; indeed, many have already weighed in. Environmental groups quickly reacted. The US EPA Administrator during the Obama administration (Gina McCarthy) now president of the Natural Resources Defense Council, said in a statement published only minutes after the new rule was finalized on January 23, 2020, “This effort neglects established science and poses substantial new risks to people’s health and the environment. We will do all we can to fight this attack on clean water. We will not let it stand.” 

As talented as the legal community is, the competing opinions of groundwater scientists will necessarily play an important role in the regulation of groundwater. Environmental Standards’ Geologists are licensed in virtually all Eastern U.S. states, solidly placing our professionals in a position to support the protection and use of the nation’s groundwater, no matter how it is defined. 

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Gerry Kirkpatrick

Managing Partner