WOTUS “News” – Groundwater is Out
While everyone may be tone deaf to the latest developments related to the definition of navigable waters, affectionately known as the Waters of the United States (“WOTUS” for short); the US EPA has released a rather significant Interpretive Statement that addresses whether the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program applies to releases of a pollutant from a point source to groundwater. Spoiler alert, it doesn’t.
Reportedly, this Interpretative Statement reflects the US EPA’s consideration of public comments received in response to its February 20, 2018 Federal Register notice on the same topic, and an analysis of the statute, its text, structure, and legislative history. As a result, the US EPA has concluded that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage, regardless of a hydrologic connection between the groundwater and jurisdictional surface water.
DISCTRICT COURT RULINGS
Perhaps more interesting than a definitive statement from the US EPA regarding WOTUS, is the acknowledgement that its interpretation does not apply to states in the Ninth and Fourth Circuits, as explained therein, since existing court decisions have ruled the exact opposite. The US EPA is, “simply choosing to maintain the status quo pending further clarification by the Supreme Court.” The rationale behind the interpretative statement, simply explained by the Sixth Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Co., held that the ‘‘text and statutory context of the CWA’’ make clear that the statute “does not extend to reach this form of pollution.” The court went on to state, “It is true that Congress sought to protect navigable waters with the CWA … But it also imposed several textual limitations on the means used to reach that goal. Had it wished to do so, Congress could have prohibited all unpermitted discharges of all pollutants to all waters. But it did not go so far. Instead, Congress chose to prohibit only the discharge of pollutants to ‘navigable waters from any point source.”’
Absent court decisions, the real determination of omission of the applicability of the CWA to groundwater concerns the implied states’ responsibility to regulate pollutant discharges to groundwater under a state authority. As there is nothing restricting a state from doing so, the assumption would be that states could regulate contaminated discharge into groundwater, if desired, under their existing legal authority. Added to that, and beyond state programs, three other federal statutes touch upon discharges to groundwater: the Safe Drinking Water Act (‘‘SDWA’’), the Resource Conservation and Recovery Act (‘‘RCRA’’), and the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’).
Under the SDWA, the US EPA has established requirements for state programs to regulate underground injection of fluids and to establish minimum requirements for effective state programs to prevent underground injection which endangers drinking water sources (defined under SDWA to mean underground water which supplies, or can reasonably be expected to supply, any public water system).
RCRA has several provisions that expressly address groundwater monitoring and remediation at hazardous waste treatment, storage, and disposal (TSD) facilities. Monitoring includes identifying background, or upgradient water sources, and statistically comparing the water quality between the TSD and background sources in order to identify impact from the TSD facility to groundwater.
CERCLA provides protections for groundwater quality and for surface waters impacted by releases to groundwater. CERCLA provides the US EPA with a number of tools to address releases of hazardous substances specifically where a “hazardous substance is released or there is a substantial threat of such a release into the environment,” or “where there is a release or substantial threat of release of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.”
The US EPA is soliciting additional public input for the Interpreted Statement regarding what may be needed to provide further clarity and regulatory certainty on this issue. The comment period ends June, 7, 2019.