The Environmental Protection Agency is asking for comments on whether pollutants from a point source that reach surface waters by traveling through groundwater should be subject to Clean Water Act permitting requirements. The public will have until May 21 to comment, according to a notice published in Tuesday’s Federal Register.

The quest for clarification has been prompted by conflicting court decisions over many years.

In 1994, the 7th Circuit Court of Appeals concluded, “Neither the Clean Water Act nor the EPA's definition (of waters of the United States) asserts authority over ground waters, just because these may be hydrologically connected with surface waters.”

But in a 2001 decision involving a dairy in Idaho, a federal judge found that the Clean Water Act “extends federal jurisdiction over groundwater that is hydrologically connected to surface waters that are themselves waters of the United States." 

And most recently, the 9th Circuit Court of Appeals found that millions of gallons of wastewater injected into wells by the principal municipal wastewater treatment plant for West Maui was subject to the CWA because the wastewater made its way to the Pacific Ocean through groundwater.

That case drew an amicus brief from a collection of industry groups, including the American Farm Bureau Federation and The Fertilizer Institute, in which they said that the “conduit theory” – where groundwater is the conduit – “could open the door to claims of federal CWA liability for any pollutants released from the innumerable ‘point sources’ under (their) control that might eventually find their way to navigable waters, whether by groundwater, air, surface runoff, or other means. This could greatly expand the universe of potentially permitted sources.”

In the Hawaii case, in which EPA was not a party, the agency nevertheless filed its own amicus brief to argue that the discharge of pollutants through groundwater can violate the CWA if there is a “direct hydrologic connection” to a water of the United States, according to an analysis by Latham & Watkins attorney Joel Beauvais.

But the question goes far beyond whether the CWA regulates discharges to groundwater with “a direct and immediate hydrological connection to navigable waters,” the industry groups said in their brief to the 9th Circuit.

“Liability under the ‘conduit theory’ would extend well beyond point source discharges to such groundwater,” they said. The conduit theory “could encompass not just pollutants migrating through groundwater, but also windblown pollutants and pollutants in surface runoff.”

Agricultural groups are certain to make their voice heard on the question.

“We’re very interested in weighing in on this issue,” said Scott Yager, chief environmental counsel at the National Cattlemen’s Beef Association. “We will be submitting formal comments.”

“EPA’s approach has pretty much been case by case, so that doesn’t provide much guidance to the public,” said Stephen Samuels, a former Justice Department attorney who spent decades working on Clean Water Act cases.

But he said that from what he’s seen of EPA under the Trump administration, “I worry that what’s going on behind the scenes is an effort to step back from any regulation of discharges to groundwater that ultimately reach jurisdictional surface waters.”

Earthjustice attorney Jennifer Chavez took a similar view, saying that the agency’s public notice “doesn’t seem to embrace the idea that these types of discharges should be subject to regulation.”

In the notice, EPA said it was seeking comment on whether subjecting such releases to CWA permitting “is consistent with the text, structure, and purposes of the CWA.”

If EPA does have the authority to grant discharge permits for such releases, it asked whether “those releases would be better addressed through other federal authorities as opposed to the (National Pollutant Discharge Elimination System) permit program.

“Furthermore, EPA seeks comment on whether some or all such releases are addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs, such as, for example, state programs that implement EPA's underground injection control regulations promulgated pursuant to the Safe Drinking Water Act.”

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