In a not-so-stunning development, the EPA on Monday issued an Interpretive Statement putting to rest speculation on EPA’s position as to whether groundwater discharges are subject to federal jurisdiction under the Clean Water Act (CWA).  The answer:  “No.” 

EPA’s 57-page Interpretive Statement carefully details the agency’s position.  EPA relies on the text of the CWA (focusing on broad review of the statute and the distinction it draws between navigable waters and groundwater, rather than a narrow reading of any particular provision), the legislative history of the CWA, and rulings from Fifth, Sixth and Seventh Circuits in Rice v. Harken Exploration Co., 250 F.3d 264 (5^th Cir. 2001), Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7^th Cir. 1994), and Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6^th Cir. 2018). 

I think EPA has the better side of this argument and offers a more faithful reading of the CWA and its legislative history.  While the distinction between navigable waters and groundwater might appear arbitrary from a regulatory standpoint, there’s little doubt the CWA makes and Congress intended that distinction.  The Interpretive Statement, not surprisingly, also reflects the strong emphasis that EPA Administrator Wheeler has placed on “cooperative federalism” – that certain issues are the appropriate subject of federal regulation while others are purposely left to the states. 

While EPA’s Interpretative Statement is important in setting guidance for the regulated community, it is notably limited and does not apply in the Fourth and Ninth Circuits, where those circuit courts of appeal have ruled that “hydrologically connected” groundwater can be subject to federal jurisdiction under the CWA.  Of course, the real test will come in the U.S. Supreme Court in the pending Hawai’i Wildlife Fund v. County of Maui case.  It will be fascinating to see how the Maui case unfolds, and whether the Court will be able to muster a majority to draw a bright line as EPA has done, or whether its ruling will be more narrowly tailored to the facts in that case.  Stay tuned…