EPA Reverses Course and Rejects Clean Water Act Jurisdiction Over Discharges to Hydrologically Connected Groundwater

On April 15, 2109, the Environmental Protection Agency (EPA) issued an Interpretative Statement emphatically rejecting the "indirect discharge theory" of Clean Water Act (CWA) jurisdiction over pollutant discharges into groundwater. EPA pronounced that such groundwater discharges do not require a CWA Section 402 permit, regardless of whether the groundwater is hydrologically connected to bodies of surface water.

Thus, only months before the Supreme Court plans to hear from the parties in Hawai'i Wildlife Fund v. County of Maui (No. 18-260), EPA has reversed itself (again). The Interpretative Statement announces EPA's "view that the best, if not the only, reading of the statute is that all releases to groundwater are excluded from the scope of" CWA permits. Contrary to prior statements, including its earlier amicus brief when the Maui case was before the Ninth Circuit, EPA has concluded that this is true "even where pollutants are conveyed to jurisdictional surface waters via groundwater."

EPA's recent statement is only the latest chapter in a long running saga. On February 20, 2018 the EPA published a request for comment concerning "whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to jurisdictional surface waters may be subject to [Clean Water Act] regulation." Prior to this announcement, EPA had taken conflicting positions in rulemakings, permits and briefs concerning whether pollutants discharged to groundwater with a direct hydrologic connection to surface waters were subject to CWA jurisdiction. Most notably, in May 2016 EPA appeared before the Ninth Circuit as an amicus supporting the theory that the CWA provides jurisdiction over discharges to groundwater "with a direct hydrological connection" to surface waters but not where the connection is "too circuitous and attenuated." However, despite EPA's prior statements, based upon the statutory language and a number of early CWA opinions, many lawyers believed that the CWA's permit requirements only applied to surface waters and that regulation of groundwater was reserved to the states. On that view, EPA could not require CWA permits from the myriad sources and operations, including but not limited to slurry pits, concentrated animal feeding operations, retention ponds, septic systems, and accidental spills, that discharge pollutants to groundwater.

In 2018, the Fourth, Sixth and Ninth Circuits issued at least five decisions concerning the indirect discharge theory. The Fourth and the Ninth Circuits endorsed an expansive view of EPA's CWA authority holding that permits were required for indirect discharges, while the Sixth Circuit rejected the indirect discharger theory. Based upon this split between the circuits, two of these cases, Hawai'i Wildlife Fund v. County of Maui from the Ninth Circuit and Upstate Forever v. Kinder Morgan Energy Partners, L.P. from the Fourth Circuit, generated petitions for writs of certiorari to the Supreme Court, and in December 2018 the Supreme Court requested that the Solicitor General file an amicus brief in both cases. In that amicus brief, the United States urged the Supreme Court to accept only the Maui case as "the better vehicle for resolving the circuit conflict." Id. at 15. The brief separately stated that EPA was planning to take action shortly on the groundwater discharge issue. On February 19, 2019, the Supreme Court agreed to hear argument in the Maui case, which will take place in the fall of 2019.

It is unclear whether EPA's latest position, reflected in a non-binding guidance document rather than through notice-and-comment rulemaking, will have much impact on the Supreme Court's assessment of the CWA's role in indirect discharge cases. What is clear is that Maui presents the Supreme Court with an opportunity to provide the sort of direction and consistency which has been missing in this area. Resolution of the limits of CWA jurisdiction over discharges to hydrologically connected groundwater has the potential to effect everything from federal and citizen suit enforcement of the CWA to permit requirements at thousands of facilities nationwide.

For now, EPA's Interpretative Statement concludes that whatever it may have said in the past, the CWA permit does not apply to discharges to groundwater no matter how closely connected that groundwater is to surface waters. It is important to note that EPA's statement applies only to "future NPDES permitting and enforcement decisions in portions of the country outside of the Fourth and Ninth Circuit Courts of Appeals." Thus, by its own terms, EPA's statement does not necessarily apply retroactively to past permitting decisions or existing enforcement actions, and the rulings of the Fourth and Ninth Circuits continue to reflect the state of the law within their respective states.

The Agency has opened a 45-day comment period soliciting additional public input "regarding what may be needed to provide further clarity and regulatory certainty on this issue." Many environmental practitioners would probably have a simple answer: a decision by the Supreme Court resolving the issue once and for all.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.