A collection of letters that have been adopted and sent by the Western States Water Council:
Clean Water Act Applicability to Groundwater as a Conduit for Pollutants
On February 20, the Environmental Protection Agency (EPA) published a notice (83 FR 7126) requesting comments on the applicability of the Clean Water Act (CWA) to pollutant discharges from point sources that reach jurisdictional surface waters through groundwater or other subsurface flow. The notice provides background on the National Pollutant Discharge Elimination System (NPDES) program. It addresses various collateral statements EPA has made since 1990 about the applicability of the CWA to pollutant discharges to hydrologically-connected groundwater. It notes that case law results are mixed. Some federal courts have interpreted the CWA to exclude any federal authority over groundwater, clearly leaving the regulation of groundwater to the states, while others “have taken the view that Congress intended to regulate the release of pollutants that reach waters of the United States, whether the pollutants reach the surface water directly, or through groundwater with a direct hydrologic connection.” EPA has characterized a direct hydrologic connection on a case-by-case basis, considering factors such as geology, flow, slope, distance, and traceability.
EPA requested comments on these questions: (1) Whether subjecting such releases to NPDES permitting is consistent with the text, structure, and purpose of the CWA? (2) If federal authority does exist, whether those releases would be better addressed through other federal programs, such as underground injection control regulations under the Safe Drinking Water Act, or through state statutory or regulatory programs? (3) Whether EPA should clarify its previous statements to provide certainty, such as defining what activities would be regulated, or which connections are considered “direct?” (4) What issues and consequences should be considered for asserting CWA jurisdiction over certain releases to groundwater, or determining that no such jurisdiction exists? and (5) What format or process EPA should use to revise or clarify its previous statements, whether memoranda, guidance, or rulemaking?
The following letters were submitted in response to EPA’s request:
Texas Commission on Environmental Quality
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EPA and Corps Rulemaking on Waters of the United States
On February 20, the Environmental Protection Agency and the Department of the Army held a “WOTUS Outreach Webinar for State Partners” to discuss their direction and progress toward revising the jurisdictional definition of “waters of the United States.”
The Presentation included an overview of the rulemaking process, including federalism consultations, feedback from states, and a preliminary assessment of state authorities and programs that the agencies have prepared and plan to transmit to the states next week. The agencies discussed considerations for a proposed rule, including clarifications and definitions for tributaries, wetlands, and exclusions.
State comments regarding federal jurisdictional waters varied, including: (1) traditional navigable waters only; (2) permanent lakes, and perennial streams that contain water at all times except extreme drought; (3) perennial, intermittent, and ephemeral streams; (4) only wetlands that directly touch waters of the U.S.; and (5) wetlands within a set distance, that have a direct hydrologic connection, or tributaries that have a minimum level of flow. State feedback on exclusions also varied, with comments on groundwater, shallow subsurface flow, farm ponds, artificial drains, stock ponds, dip ponds for fire suppression, municipal storm sewer system features, irrigation ditches, roadside ditches, man-made ditches without perennial flow, ephemeral streams, wet meadows, sheet flow, drain tiles, dry arroyos, prairie potholes, and playa lakes.
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In accordance with President Trump’s February 28th Executive Order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, EPA initiated a multifaceted federalism consultation process to obtain state and local government officials’ perspectives. EPA Administrator Scott Pruitt said they are “restoring states’ important role in the regulation of water,” and working “with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”
EPA is particularly interested in hearing from states regarding the impact of such a change and how states do or would regulate those waters excluded from federal jurisdiction, or “Waters of the State.”
EPA held several webinars to provide an overview of potential changes under consideration for the definition of “Waters of the U.S.” EPA and the U.S. Army Corps of Engineers plan to propose a new definition that would replace the approach in the 2015 Clean Water Rule with one that reflects the principles that Supreme Court Justice Antonin Scalia outlined in the Rapanos plurality opinion, indicating CWA jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.
Below are a few of the letters sent to EPA concerning the development of a new rule.
Western Governors’ Association
Association of Clean Water Administrators
Corps Rulemaking on Water Supply and Surplus Waters
On December 16, the U.S. Army Corps of Engineers (Corps) published a notice of proposed rulemaking, 81 FR 91556, updating its policies on the use of Corps reservoir projects for domestic, municipal, and industrial water supply. The revisions are intended to “enhance the Corps’ ability to cooperate with State and local interests in the development of water supplies,” take into account court decisions, legislative provisions and other developments, to bring greater clarity and consistency across regions, and to facilitate or avoid interfering with other lawful uses of water. The Corps proposes to define key terms and improve its interpretations and practices under the authority of the 1944 Flood Control Act (33 USC §708) and the 1958 Water Supply Act (43 USC §390b). Further information may be found here. Comments may be posted to www.regulations.gov under docket #COE-2015-0016 through May 15. A selection of some of the related letters submitted is included below:
Western Governors’ Association
Missouri Tristate Water Association
Nebraska Lewis and Clark Natural Resource District
North Dakota Water Users Association
EPA Rulemaking on Water Quality Standards for Tribes
WSWC Comment on EPA Baseline WQS
South Dakota Department of Environment and Natural Resources
North Dakota Division of Water Quality
Washington State Department of Ecology
Agua Caliente Band of Cahuilla Indians
Colorado Department of Public Health and Environment
Cow Creek Band of Umpqua Tribe of Indians