EPA Issues Interpretive Statement: Groundwater Discharges are Not Subject to the Clean Water Act

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 (5th Cir. 2001), Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), and Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th 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… 

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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