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Reggie L. Bouthillier
Tallahassee
Jeffrey A. Collier
Tampa
Jacob T. Cremer
Tampa
F. Joseph Ullo
Tallahassee
Special thanks to Kimberli Quintero who assisted in the drafting of this update. Kim is a second-year Juris Doctor Candidate at Stetson University College of Law.
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EPA Provides Clarity on CWA Regulation of Groundwater - for Now
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Earlier this week, the U.S. Environmental Protection Agency ("EPA") reversed its earlier position and issued clear guidance that releases of pollutants to groundwater are categorically excluded from the Clean Water Act's ("CWA") permitting requirements, regardless of whether the groundwater is hydrologically connected to navigable waters within the CWA's jurisdiction. The EPA's guidance, which will be welcomed by municipal and industrial facilities that discharge pollutants into groundwater, comes out as the U.S. Supreme Court is set to hear a case on the same issue this summer. For some, this issue could have as much impact as the attempts to define navigable waters in its Waters of the United States Rule ("WOTUS"), which we have been closely following.
In general, Congress has traditionally charged the federal government with regulation of waters of the United States and deferred direct groundwater regulation to states and local governments. The CWA does not directly regulate groundwater. The question the Supreme Court has agreed to take up in County of Maui v. Hawaii Wildlife Fund is whether the CWA can be used by the federal government and environmental advocacy groups to indirectly regulate groundwater?
In this case, the Ninth Circuit addressed whether the CWA regulates instances in which pollutants are discharged from a point source and then travel though groundwater to eventually reach navigable waters regulated by the CWA. The Ninth Circuit held that the injection wells at issue were point sources regulated by the CWA, despite their lack of a direct discharge of the pollutants into the ocean. In short, the Ninth Circuit concluded that even indirect discharges are regulated by the CWA. Federal appellate courts have been split on the question, with others holding that the plain text of the CWA states that only point sources that "convey" pollutants to navigable waters are regulated.
The Supreme Court's decision could drastically expand the scope of pollutant regulation and could require landowners, businesses, and government agencies to restructure their plans. To maintain a narrow interpretation would only allow the federal regulation of groundwater under the CWA in the case of direct discharges into navigable waters. A broader interpretation would blur the line between groundwater and navigable waters, introducing uncertainty and spawning more litigation. In fact, the implications of the Ninth Circuit's decision were so broad that homeowners with septic tanks and underground injection wells could become subject to federal regulation under the CWA for the first time.
Given the EPA's recent conflicting opinions on the issue, it is unclear how much deference the Supreme Court will give to the EPA's interpretation of the CWA - an Act the EPA is charged with administering. Briefing on the case will conclude this summer, and the case will likely be heard in late 2019 or early 2020. The EPA included in its statement earlier this week that it will follow its recent guidance statement with an official rulemaking process after the Supreme Court issues its opinion. We will continue to follow the Maui case and other WOTUS and CWA developments.
Our Land Development, Zoning & Environmental team has extensive experience advising clients on all matters related to wetland regulation, groundwater pollution and remediation, and land development. For more information, please contact us.
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