Press Release

Eleven AGs Urge EPA to Maintain Longstanding Clean Water Act Protections Against Discharges Through Groundwater

By disregarding the Clean Water Act’s clearly stated objective, the Trump administration is attempting to create a glaring loophole in federal clean water regulations.

The EPA’s new Interpretative Statement would allow pollution discharge directly into navigable waters by simply “directing pollutants into groundwater immediately adjacent to navigable waters.”

Wash­ing­ton, D.C. — A coali­tion of 11 state attor­neys gen­er­al led by Mary­land Attor­ney Gen­er­al Bri­an Frosh sent a let­ter to the Envi­ron­men­tal Pro­tec­tion Agency (EPA) object­ing to the agency’s April 2019 Inter­pre­ta­tive State­ment elim­i­nat­ing the Clean Water Act’s juris­dic­tion over pol­lu­tants that reach fed­er­al­ly pro­tect­ed nav­i­ga­ble waters through ground­wa­ter con­nec­tions. The attor­neys gen­er­al not­ed that the agency’s Inter­pre­tive State­ment vio­lates the Admin­is­tra­tive Pro­ce­dure Act and the Clean Water Act, and request­ed its with­draw­al.

The EPA con­tin­ues to ignore its pur­pose: to pro­tect the peo­ple and our envi­ron­ment from pol­luters,” said Attor­ney Gen­er­al Frosh. Their lat­est posi­tion con­flicts with Supreme Court case law, is a rever­sal from pre­vi­ous pol­i­cy, and allows pol­luters to do an end-run around the require­ments of the Clean Water Act.”

The AGs’ let­ter comes as the Supreme Court is con­sid­er­ing Coun­ty of Maui v. Hawaii Wildlife Fund—a case that will address the applic­a­bil­i­ty of the Clean Water Act for pol­lu­tion that has been dis­charged from a point source into nav­i­ga­ble waters through a hydro­log­ic inter­me­di­ary such as ground­wa­ter. The case is expect­ed to resolve a Cir­cuit Court split between the Sixth and Ninth Cir­cuits, which have applied Clean Water Act pro­tec­tions to point source pol­lu­tion reach­ing nav­i­ga­ble waters through direct hydro­log­i­cal con­nec­tions, and the Fourth Cir­cuit, which has declined to do so.

In their let­ter, the attor­neys gen­er­al warned that the EPA’s new 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 attor­neys gen­er­al object­ed to the EPA’s claim that such dis­charges are suf­fi­cient­ly addressed under oth­er statutes, and also not­ed that the guid­ance opens the door to oth­er atex­tu­al excep­tions” that would fur­ther under­mine the Clean Water Act.

The attor­neys gen­er­al also not­ed that the guid­ance direct­ly con­tra­dicts the EPA’s long­stand­ing posi­tion on this issue, as laid out in an ami­cus brief that the EPA filed in 2016; was timed to influ­ence the Supreme Court’s review of the Coun­ty of Maui case; and, accord­ing­ly, is a con­ve­nient lit­i­gat­ing posi­tion” that deserves no def­er­ence.

The EPA’s attempt to sud­den­ly erase a long his­to­ry of apply­ing the Clean Water Act to indi­rect dis­charges of con­t­a­m­i­nants into nav­i­ga­ble waters can­not stand,” said David J. Hayes, Exec­u­tive Direc­tor of the State Ener­gy & Envi­ron­men­tal Impact Cen­ter. As Jus­tice Scalia point­ed out in the Supreme Court’s Rapanos deci­sion, Clean Water Act juris­dic­tion is not lim­it­ed to direct dis­charges into water­ways; it cov­ers indi­rect dis­charges too. Any oth­er read­ing of the law would open up a huge loop­hole in the law.”

The attor­neys gen­er­al of Cal­i­for­nia, Col­orado, Con­necti­cut, Maine, Mass­a­chu­setts, Michi­gan, Ore­gon, Rhode Island, Ver­mont and Wash­ing­ton, D.C. joined Mary­land in sub­mit­ting the let­ter to the EPA.

The State Ener­gy & Envi­ron­men­tal Impact Cen­ter is a non-par­ti­san Cen­ter at the NYU School of Law that is ded­i­cat­ed to work­ing with state attor­neys gen­er­al to pro­tect and advance clean ener­gy, cli­mate change, and envi­ron­men­tal val­ues and pro­tec­tions. It was launched in August 2017 with sup­port from Bloomberg Phil­an­thropies. For more infor­ma­tion, vis­it our web­site.