Eleven AGs Filed Comments Opposing EPA Guidance Eliminating Clean Water Act Protections Against Discharges Through Groundwater

JUNE 7, 2019

Maryland Attorney General Brian Frosh led a coalition of 11 state attorneys general in sending a letter to the Environmental Protection Agency (EPA) objecting to the agency’s April 2019 Interpretive Statement eliminating the Clean Water Act’s jurisdiction over pollutants that reach federally protected navigable waters through groundwater. The attorneys general warned that the EPA’s guidance would allow polluters to circumvent Clean Water Act permitting requirements “simply by directing pollutants into groundwater immediately adjacent” to federally protected surface waters, “even if the pollutants are certain to reach those waters.” The AGs also emphasized that the guidance contradicts the EPA’s own 2016 amicus brief in County of Maui v. Hawai’i Wildlife Fund, appears timed to influence the Supreme Court’s decision in that case, and, accordingly, is a “convenient litigating position” that deserves no deference. The AGs also noted that the guidance violates the Administrative Procedure Act and the Clean Water Act, and requested its withdrawal.