On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
The Interpretative Statement, authored by EPA’s General Counsel and Assistant Administrator for Water, is addressed to all Regional Administrators to provide clarity and inform future permitting decisions. The center of the Statement is the EPA’s official position that Clean Water Act should be best read as excluding all releases of pollutants into groundwater that travel to jurisdictional surface waters, regardless of the hydrologic connections between the groundwater and surface water. To explain its position, EPA points directly to the Clean Water Act’s legislative history, stating that Congress intentionally chose to exclude all pollutant releases to groundwater from the program coverage. States, per EPA, are better positioned to regulate groundwater. To further support its position, EPA also provides examples of other federal statutes that protect groundwater, including the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.
Importantly, in its interpretation EPA chose to categorically exclude all releases to groundwater, instead of continuing to assert a position it maintained in its County of Maui amicus filing in the Ninth Circuit. There, EPA stated that a direct hydrologic connection theory was consistent with the Clean Water Act. Likewise, EPA did not base its current interpretation on a position it articulated in its previous statements that touched on this issue, or on other theories argued in federal courts, including that a discharge to groundwater could be covered if it was “fairly traceable” to a point source or if it was “sufficiently connected to navigable waters.”
This interpretation applies outside of the Ninth and Fourth circuits, based on the existing court decisions in those circuits. Although EPA acknowledges the Interpretative Statement could apply in those circuits, it chose to “maintain the status quo” pending the Supreme Court’s clarifications. Once the Interpretative Rule is officially published in the Federal Register, EPA will solicit comments on “what may be needed to provide further clarity and regulatory certainty on this issue.”