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

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.

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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.