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On April 23, the U.S. Environ – mental Protection Agency published a notice of availability of an interpretive statement concluding that releases of pollutants to ground – water should be categorically excluded from Clean Water Act (CWA) permitting requirements. 84 Fed. Reg. 16810. The notice opens a 45-day public comment period, ending on June 7. EPA is requesting comments on its analysis and rationale and is also soliciting input on additional actions that may be needed to provide further clarity and regulatory certainty on whether the National Pollutant Discharge Elimination System (NPDES) permit program regulates releases of pollutants to groundwater.
With the issuance of the interpretive statement, EPA has reinjected itself into the ongoing debate, federal circuit court split and pending U.S. Supreme Court case over whether the CWA’s NPDES permit program regulates point source discharges that travel through groundwater before reaching a jurisdictional surface water. The interpretive statement and the related, ongoing judicial decisions are of interest to the natural gas industry, among other industries, given the potential implications related to leaks/spills from pipelines, impoundments and other structures.
Interpretive statement content and reasoning
EPA describes the interpretive statement as the agency’s “most comprehensive analysis” of the CWA’s text, structure and legislative history in relation to whether the NPDES permit program regulates point source releases to groundwater. Most of the 63-page interpretive statement discusses EPA’s legal analysis of the statutory provisions that implement and enforce the NPDES permit program, the forward-looking, information-gathering statutory provisions that explicitly reference groundwater, and the relevant legislative history. Based on its analysis of this information, EPA concludes that Congress deliberately chose to exclude discharges of pollutants to groundwater from the NPDES permit program, even when those pollutants are conveyed to a jurisdictional surface water via groundwater. While EPA’s conclusion is based primarily on its legal interpretation of the CWA, the policy-based rationale supporting its conclusion is that groundwater is extensively regulated under other federal and state statutory regimes. With respect to state laws and regulations that limit discharges to groundwater, EPA notes that several states have laws in place to protect groundwater. On the federal side, EPA notes that the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation and Liability Act all regulate groundwater quality to some extent. According to EPA, these federal and state laws and regulations are sufficient to protect groundwater.
Conflict with existing circuit court opinions and pending Supreme Court appeal
EPA’s position in the interpretive statement differs from the two legal theories that emerged from the 2018 Fourth and Ninth Circuit Court decisions addressing whether the CWA regulates point source discharges that travel through groundwater before reaching a jurisdictional surface water. Unlike the decisions of the Fourth and Ninth Circuits and EPA’s prior statements that have been construed as advocating a different interpretation, EPA now unequivocally states that any release of a pollutant to groundwater does not fall within the ambit of the CWA. Thus, EPA has rejected the “direct hydrological connection” legal test established by the Fourth Circuit in Upstate Forever v. Kinder Morgan and the “fairly traceable” legal test established by the Ninth Circuit in Hawai’i Wildlife Fund v. County of Maui. EPA will, therefore, apply the interpretive statement in all jurisdictions, other than those 14 states (including West Virginia, Virginia and Maryland) and other territories within the Fourth and Ninth Circuits. The decisions of the Fourth and Ninth Circuits will stand until further clarification by the U.S. Supreme Court, which agreed to hear the County of Maui appeal approximately two months ago. \
In the Ninth Circuit’s County of Maui v. Hawai’i Wildlife Fund decision, the court affirmed the district court’s decision that the county was liable under the CWA for injecting treated sanitary wastewater into separately permitted underground wells after the plaintiffs demonstrated that the discharge ultimately reached the Pacific Ocean. On appeal, the Supreme Court will be deciding “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” The court granted the county’s petition for review after the United States filed an amicus brief, in which it noted that EPA would soon be publishing what we now know is the interpretive statement.
It is unclear what role, if any, EPA’s interpretive statement will play in the County of Maui matter. The county’s merits brief currently is due before the close of the public comment period on the interpretive statement. It is also unclear whether EPA will finalize any rulemaking or take any more formal administrative action before the Supreme Court renders its decision, likely in 2020 after oral arguments are heard this fall. Furthermore, the level of deference, if any, the Supreme Court will give EPA on its position in the interpretive statement is unclear, particularly because the position articulated in the interpretive statement is inconsistent with the position that the United States, on behalf of EPA, took in an amicus brief filed when the County of Maui case was previously heard by the Ninth Circuit.
In the meantime, regulated parties outside the Fourth and Ninth Circuits now have additional support to defend against lawsuits alleging that the CWA regulates point source discharges that travel through groundwater before reaching a jurisdictional surface water.