While establishing scientifically-sound regulatory limits for per- and poly-fluoroalkyl substances (PFAS) has been getting the lion’s share of the attention from the environmental community, there is a more-fundamental environmental question that was recently addressed.  The issue surrounds the often-contentious waters of the United States (WOTUS).  For background on WOTUS, see “The Tortuous Path of Waters of the United States.”

Hydrologic Connection

One of the main legal arguments during the US Supreme Court Rulings in attempting to define WOTUS was the issue of the “hydrologic connection” between groundwater and surface water (Rapanos v. United States).

The recent ruling by the United States Environmental Protection Agency (USEPA) essentially eliminates consideration of the hydrologic connection.

The EPA’s “Interpretive Statement on The Application of the NPDES Program to Release of Pollutants from Point Sources of Groundwater” was issued on April 15, 2019.  The short summary is that the EPA concluded that releases of pollutants to groundwater are “categorically excluded from the Act’s permitting requirement…”

The EPA believes discharges to groundwater are left to (1) the states and (2) the EPA under other statutory authorities (i.e., other environmental laws/regulations).

WOTUS and Agriculture

One industry that has long had concerns about the WOTUS definition is agriculture.  By its very nature, agriculture uses large tracts of land.  As part of routine operations, they apply fertilizers and, in many cases, manure to the land. They also store agricultural-related chemicals and fuel.  Livestock farms also store manure in large ponds.  The manure storage and application has been the target of some environmental groups.  A liberal interpretation of the hydrologic connection under WOTUS would be impactful to agriculture and require more permitting for farm operations.

The Vorys Law Firm provides the following with respect to how this interpretation affects agriculture.  “USEPA’s interpretive statement is particularly notable with respect to agricultural operations and facilities – i.e. dry wells, injection wells, dead animal pits, cesspools, manure management ponds, lagoons and large capacity septic systems – that infiltrate non-hazardous agricultural wastewater to groundwater to treat the wastewater, and that might have a hydraulic connection to a nearby surface water.”  With a wider definition of WOTUS such as the now moot 2015 “final WOTUS rule,” these operations would likely be permitted activities.

Of course, when it involves regulations, nothing is ever straightforward, and with opposing Circuit Court Rulings, we still have some legal loose ends.

Defining WOTUS is “big deal” for agriculture and other regulated industries

Clean Water Act Circuit Court Rulings

According to the EHS Daily Advisor, “Currently there is a split among federal appeals courts over whether the CWA extends to the interaction of point sources, groundwater, and U.S. waters.  In 2018, both the 9th Circuit and the 4th Circuit found that if a point source discharges a pollutant that reaches a U.S. water, that discharge is subject to NPDES permitting, whether the discharge is direct or indirect—that is, conveyed to the jurisdictional surface water by way of groundwater.”

However, as is pointed out in the same article, in 2018, the 6th Circuit took the opposing position.  The 6th Circuit stated that the relevant statutory language applied only where pollution has been added directly to navigable waters “by virtue of a point-source conveyance.”

With the 4th and 9th Circuits taking a different view, we still lack consistency across the country.  According to the Law firm of Michael Best, “EPA’s interpretive statement does not apply within two federal appellate circuits where courts have adopted a different interpretation of the CWA as it relates to discharges to groundwater.  Specifically, EPA’s statement does not apply within the Fourth Circuit (West Virginia, Maryland, Virginia, North Carolina, and South Carolina) or Ninth Circuit (Washington, Oregon, California, Idaho, Montana, Nevada, Arizona, Alaska, and Hawaii).”

The Supreme Court is expected to rule on a case speaking to this issue in the next few months.  See County of Maui, Hawaii v. Hawaii Wildlife Fund.

The EPA’s full 57-page document provides more details on the EPA’s statement.

Environmental Groups Weigh In

While the EPA reviews the comments (comment period closed on June 7, 2019), expect more legal action.  In a recent post, the environmental group Waterkeeper stated, “EPA is now moving forward… and has released an interpretation of the Act that would let known polluters off the hook and even create incentives for companies to pollute more.”

Groundwater Experts

With more than 30 years of experience, Dragun Corporation has been a “go to resource” for environmental matters involving groundwater.  Our hydrogeological expertise was called upon to assess the hydrologic connection in the Rapanos case that went to the US Supreme Court.  We also assisted a client on a groundwater case that went to the Michigan Supreme Court that resulted in a favorable ruling for our client.

If you need assistance on a groundwater related matter, we can help.  If you have questions or need additional information, contact me at 248-932-0228, Ext. 117.

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