EPA is sifting through widely divergent comments in an attempt to clarify the scope of the Clean Water Act (CWA).
The EPA is working to rewrite the "waters of the U.S." rule, but farm and environmental groups are also watching an agency determination as to whether or not the government should regulate discharges of pollution from point sources directly connected to navigable waters through groundwater.
Conflicting court decisions helped prompt the agency’s quest for clarification, although two recent appeals court opinions tilt towards more regulation of groundwater, not less. In February, 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.
Then in April, the Fourth Circuit Court of Appeals in Richmond ruled 2-1 that pollutants don’t have to go directly from a point source (say, a discharge pipe) to surface waters in order to be regulated. Traveling through groundwater would be sufficient to require a permit.
Neither the Fourth nor the Ninth Circuit granted requests to rehear their decisions, setting the table for a possible Supreme Court review. Maui County already has said it plans to file a petition.
After the Ninth Circuit’s decision but before the Fourth’s, EPA asked for input, and toward the end of May the comments began to flow. Farm groups contend that the CWA does not intend to regulate groundwater.
Despite ambiguity in the law, it’s clear that “Congress drew a bright line between point source discharges and nonpoint sources of pollution, subjecting only point source discharges to CWA permitting,” the American Farm Bureau Federation, Agricultural Retailers Association and 21 other farm or forestry groups said in their comments. “Both nonpoint source pollution control and groundwater regulation fall within the traditional authority of state governments.”
Under WOTUS reform efforts, the administration is seeking to redefine what is deemed a "water of the U.S." through the CWA. This attempt at clarification seeks to determine under what conditions discharge permits would be necessary.
If EPA were to decide that it could regulate groundwater carrying pollution from a point source to navigable waters, those groups said states would not able to use Section 319 grants to address groundwater pollution, because groundwater would be swept up in the National Pollutant Discharge Elimination System (NPDES) permit program.
“Agriculture and many other industries rely on lagoons, basins, pits, and impoundments to support their operations,” the groups said. “Many of those features do not currently require NPDES permits and are instead considered nonpoint sources of pollution. Under the ‘direct hydrological connection’ (or a comparable) theory, however, releases of pollutants from such structures could be regulated as point source discharges.”
“NPDES requirements were not designed with diffuse groundwater migration in mind. Rather, NPDES requirements were aimed at ‘end-of-pipe’ discharges directly into surface waters,” the farm groups said in their comments.
Ag groups said that even though EPA has said in recently filed court papers that its longstanding position has been to regulate pollution that flows through groundwater to surface waters, that’s not the case.
“Interestingly, neither EPA’s request for comment nor the United States’ amicus brief in the County of Maui litigation mention the numerous EPA statements suggesting that the CWA does not regulate discharges via groundwater,” AFBF said.
“In several NPDES permit proceedings between 2011 and 2017, EPA stated that discharges to groundwater are not regulated or addressed under the NPDES program,” AFBF said.
The National Cattlemen’s Beef Association, which signed on to the agricultural groups’ comments, said in its own filing that “naturally flowing and diffuse subsurface flow cannot be compared to conveyances that are designed, built, and maintained to gather effluent and move it from one point to another; the agency must clarify this point.”
If groundwater falls under EPA’s regulatory purview, “all sectors of the cattle industry will face additional scrutiny, with little to no mitigation ability or environmental benefit,” NCBA said.
The Natural Resources Defense Council took a different stance, arguing that “the strong weight of case law” – including the Fourth and Ninth Circuit decisions – “supports the conclusion that indirect discharges through subsurface or groundwater to waters of the United States require NPDES permitting.”
NRDC said federal laws have to be interpreted to prevent “absurd results,” which is what would happen if discharges from a point source were exempted simply because the pollutant does not flow directly into navigable waters.
“Nobody would think to suggest that the myriad wastewater dischargers around the country whose effluent falls from a pipe elevated above a body of water need not obtain NPDES permits, even though the discharge leaves the point source and travels through the air before reaching a water body covered by the Act,” NRDC said. “Similarly, it would be absurd to exempt a sewage treatment plant from the NPDES program if its discharge pipe ended just short of a river’s bank.”
States are better equipped to handle groundwater issues, the Association of Clean Water Administrators said. “Twenty-nine states include groundwater under their definitions of ‘Waters of the State’, allowing for the regulation of direct discharges of pollutants to groundwater through state programs,” ACWA said, adding that “states are in the best position to manage this issue, for states are particularly situated to assess local environmental conditions, understand their own legal frameworks, have the expertise, and recognize how to appropriately implement the various federal and state laws that may cover a discharge of pollutants to groundwater that may impact surface water.”
Ultimately, ag groups said they are seeking clarity. “Farmers, ranchers, and foresters need to know whether their day-to-day activities are subject to the (NPDES) permitting program or whether they are instead addressed by states in accordance with the (CWA’s) nonpoint source programs,” AFBF said.
And NCBA said that EPA's efforts to redefine WOTUS would be for naught "if EPA finds authority to regulate discharges to surface water via groundwater and other naturally flowing subsurface waterbodies."
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