clean water act blog

Environmental Protection Agency Interpretive Statement Comments

On April 15, 2019, the Environmental Protection Agency issued an Interpretive Statement (“Interpretive Statement on Releases of Pollutants from Point Sources to Groundwater”), which states that: “releases of pollutants to groundwater are categorically excluded from the Clean Water Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to the EPA under other statutory authorities.”


What does this mean? Well, the agency would be formally reversing its longstanding interpretation of the Clean Water Act. If pollutants are discharged from point sources through groundwater before they reach surface waters -- those pollutants would be EXEMPT from Clean Water Act regulation. Meaning, pollutant discharges to Waters of the United States from things like pipelines, wells, mines, deep well injection, animal feeding operation, and other pollution sources through groundwater would be near impossible to regulate under the CWA. It could also create an incentive for polluters to discharge waste into the groundwater, instead of getting the proper permits to dispose of it otherwise. 

Miami Waterkeeper signed on to Waterkeeper Alliance comments on this statement opposing this new interpretation, which threatens our groundwater and aquifers and could lead to significant pollution. Point sources that pollute like this should, therefore, be required to obtain a permit under the National Pollutant Discharge Elimination System, just like sources that discharge pollutants directly to rivers and streams.

Miami Waterkeeper is not alone: This exact issue has previously been addressed by the EPA itself and multiple courts, which have repeatedly and correctly rejected the prescriptive rule that EPA now seeks to adopt via the Interpretive Statement.

Excluding pollutants to groundwater from the Clean Water Act’s permitting requirements will irresponsibly and dangerously impede the ability of the EPA, states, tribes, and citizens to protect water bodies and people who use them across the country⸻the exact goal of the CWA. No other federal or state laws adequately and consistently act to prevent the discharge of pollution from point sources to surface waters, including through hydrologically connected groundwaters; therefore, this interpretation could lead to harm to the public health, water quality, and wildlife, and would be arbitrary and capricious, an abuse of discretion and unlawful.

We have, through our comments, requested that the EPA withdraw its April 2019 Interpretive Statement and abandon its effort to reverse its longstanding interpretation. We feel that EPA should not attempt to meddle with the workable, fact-specific inquiry that the agency has relied upon for decades to answer the question of whether the “direct hydrological connection” standard is met. The Clean Water Act is a critically important means of protecting our waters, and it should be enforced as written rather than circumvented.

Read the full comments HERE

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