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The United States Environmental Protection Agency (“Agency”) issued guidance on April 15, 2019, “clarifying” that releases of pollutants from point sources to groundwater are not subject to the Clean Water Act’s permitting requirements. The Agency, however, announced that its interpretation only applies to states outside the Fourth and Ninth Circuits, because those Courts of Appeal have ruled exactly the opposite on this issue. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (“Kinder Morgan”); Hawai'i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) (“County of Maui”).

The Fourth Circuit in Kinder Morgan and the Ninth Circuit in County of Maui both ruled that discharges to groundwater that reach surface water are subject to regulation by USEPA under the Clean Water Act. Kinder Morgan, 887 F.3d at 651 (“a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water”); County of Maui, 881 F.3d at 765 (pollutants must be “fairly traceable from the point source to a navigable water.”) The Supreme Court of the United States granted certiorari in County of Maui on February 19, 2019. County of Maui, 139 S. Ct. 1164 (2019). Thus, the Supreme Court should ultimately resolve the issue of whether pollutant releases to groundwater from point sources that reach surface water require an NPDES permit.

In the Ninth Circuit Court of Appeals, the United States, as amicus curiae, stated in its brief that “EPA’s longstanding position is that a discharge from a point source to jurisdictional surface waters that moves through groundwater with a direct hydrological connection comes under the purview of the CWA’s permitting requirements.” Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellees, No. 15-17477 (9th Cir. May 31, 2016), p. 5; see also County of Maui, 886 F.3d at 749 n. 3. The new USEPA guidance takes the opposite position, stating that the “Agency’s view is that the best, if not the only, reading of the statute is that all releases to groundwater are excluded from the scope of the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater.” USEPA Interpretative Statement (April 12, 2019), p. 11 (emphasis added).

In the recent guidance, USEPA acknowledged its prior brief but stated that, based on further review, “[t]he text, a holistic analysis of the statute, and the legislative history indicate that Congress’s intent was to categorically exclude groundwater from coverage of the permitting provisions of the Act and to leave regulation of groundwater to the states, irrespective of the type of groundwater formation and whether it allows for discharge to jurisdictional surface waters or the directness of such a conveyance.” Id. at 33. The Agency noted that it had issued “a range of prior statements” on this subject, but the guidance “contains the Agency’s most comprehensive analysis of the CWA’s text, structure, legislative history, and judicial decisions that has been lacking in prior Agency statements on this issue.” Id. at 36-37. The United States will likely argue consistently with the position set forth in the guidance in briefing submitted to the Supreme Court in County of Maui.

The Agency stated that, despite its present disagreement with the reasoning of the decisions in Kinder Morgan and County of Maui, it will nonetheless “apply the decisions of those courts in their respective circuits until further clarification from the Supreme Court.” Id. at 4. Therefore, the Agency’s interpretation set forth in the new guidance “applies at this time only outside of the Fourth and Ninth Circuits.” Id. Consequently, until the Supreme Court decides the issue, point sources in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (Ninth Circuit), as well as point sources in Maryland, North Carolina, South Carolina, Virginia, and West Virginia (Fourth Circuit), may still be subject to the rule that discharges to groundwater that reach surface water are subject to regulation by USEPA under the Clean Water Act and require an NPDES permit. Point sources in Illinois and Missouri, on the other hand, may be subject to the Agency’s new interpretation of the Clean Water Act.

Finally, while the guidance sets forth USEPA’s position regarding regulation of groundwater under the Clean Water Act, the Agency also notes that both state programs and other federal statutes “provide important protections for groundwater quality.” Id. at 48-49. The Agency observed that the federal Safe Drinking Water Act, the Resource Conservation and Recovery Act (“RCRA”), and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) can be applied to groundwater and “surface waters impacted by releases to groundwater.” Id. Accordingly, whether or not discharges to groundwater are within the jurisdiction of the Clean Water Act, pollution of groundwater can be addressed by USEPA under other federal statutes, and by the states under state law.

USEPA will seek public comments on the position set forth in the guidance. Links to the guidance (called an “Interpretative Statement”) and the Interpretative Statement Fact Sheet can be found here. The Interpretative Statement as published in the Federal Register on April 23, 2019, can be found here.