Attorneys General: Don’t Gut the Clean Water Act

Washington, D.C. — Maryland Attorney General Brian Frosh led a coalition of five states in submitting comments yesterday in opposition to the Environmental Protection Agency’s (EPA) apparent interest in rolling back its longstanding position that the Clean Water Act (CWA) regulates the discharge of pollutants that move from point sources into surface waters via a short and direct groundwater or other intermediary conduit. EPA’s long-held position follows the direction of the CWA and the courts, and provides states with essential protections from unpermitted, upstream discharges of harmful pollutants.

EPA’s possible reversal of its interpretation appears to be coordinated with a coalition of conservative state attorneys general who have been unsuccessfully asking courts to overturn a long line of cases that confirm that discharging pollutants to protected waters through a groundwater connection without a permit violates the CWA.

“Our states rely on the CWA’s federal regulatory floor to protect in-state waters against pollution flowing downstream from states that otherwise might opt for less restrictive controls on discharges of pollutants—including discharges that reach navigable waters via a groundwater intermediary,” wrote the attorneys general in their comments. “Because of the CWA, our states can trust that out-of-state discharges to navigable waters—including waters that ultimately flow within our boundaries—are monitored and subject to permits that take into account the capabilities of treatment technologies, impacts on water quality, and the Act’s overall goal of protecting the nation’s waters.”

“New information confirming that coal ash toxics are contaminating important waterways around the U.S. have triggered a coordinated, all-hands-on-deck effort by coal-dependent utilities and their friends to cut the heart out of the Clean Water Act’s permit system. While some state attorneys general are playing along, progressive AGs are standing tall and defending the Clean Water Act,” said David J. Hayes, executive director of the State Energy & Environmental Impact Center. “State attorneys general, led by Maryland’s Brian Frosh, will fight to uphold the law, protect the environment and keep toxic pollutants out of our homes.”

In addition to Maryland Attorney General Frosh, attorneys general from the following states joined in submitting comments: California, Massachusetts, Oregon and Vermont.

BACKGROUND

In February 2018, EPA published a request for comments on whether the agency should revise its longstanding position that “pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.”

The request for comments was issued at the same time that a coalition of conservative attorneys general filed an amicus brief in the Sixth Circuit in Tennessee Clean Water Network v. Tennessee Valley Authority, arguing that discharges that reach protected waters through short groundwater connections are beyond the reach of the CWA. The brief argued for reversing a lower court decision which had found that the Tennessee Valley Authority (TVA) had violated the CWA in operating leaking coal ash impoundments that reached the nearby protected Cumberland River via groundwater.

The following month, a coalition of four attorneys general, led by Maryland Attorney General Frosh, filed an amicus brief in the same litigation. The amicus brief urged the Sixth Circuit to uphold the lower court’s decision as consistent with the requirements of the CWA and years of case law as well as being protective of our nation’s waterways.

Since January 2017, state attorneys general have taken nearly 100 actions to advance and defend progressive clean energy, climate and environmental laws and policies. View all actions on the State Energy & Environmental Impact Center’s online hub.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.