On February 20, 2018, the U.S. Environmental Protection Agency (EPA) requested comments on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water may be subject to regulation under the Clean Water Act (CWA).

The answer to this question will have far reaching implications because the scope of the agency’s powers under the CWA determines the scope of:

  • National Pollutant Discharge Elimination System (NPDES) permitting programs;
  • Section 404 wetlands permitting programs;
  • Section 311 oil/hazardous substance release requirements; and
  • Spill Prevention Control and Countermeasure (SPCC) requirements.

As a result, the extent to which a discharge to groundwater that reaches jurisdictional surface waters is subject to regulation under the CWA is a significant issue for farmers, manufacturers, and anyone who discharges to groundwater.

Background

The CWA regulates the discharge of pollutants and placement of fill into “navigable waters,” and defines navigable waters as “the waters of the United States.” Since the CWA was passed in 1972, there has been much debate over the extent to which waters that are not considered navigable in fact and wetlands may be regulated as waters of the United States. This uncertainty has given rise to a variety of CWA citizen suits alleging that discharges from point sources that migrate via groundwater to waters of the United States require NPDES permits.

Over the years, various federal courts have reached differing conclusions on the question of whether discharges to groundwater can be considered discharges to waters of the United States. Most recently, the Ninth Circuit addressed this issue in Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018). In that case, the County of Maui (the “County”) discharged treated effluent from its wastewater reclamation facility into injection wells. Tracer dye studies confirmed that this effluent migrated through the groundwater to the Pacific Ocean. A three-judge panel for the Ninth Circuit Court of Appeals ruled that the County’s discharge triggered Clean Water Act jurisdiction and the need for an NPDES permit because the groundwater was hydrologically connected to the Pacific Ocean, a water of the United States. Under the court’s ruling, an indirect discharge of contaminants from point sources that travels through groundwater and ultimately reaches navigable waters will now be subject to federal permitting requirements.
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The U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice (“DOJ”) have recently issued memoranda concerning civil enforcement of violations, including violations of environmental laws.

The January 22, 2018 EPA memorandum, entitled “Interim [Office of Enforcement and Compliance Assurance] Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized

A client alert issued today by Husch Blackwell’s environmental practice group details a major reversal of Obama-era policy by the Trump Administration.  The EPA announced it will not issue final regulations under CERCLA Section 108(b) imposing financial responsibility requirements on the hardrock mining industry. Abandoning a December 1, 2016 proposed rule, the EPA emphasized that

The month of August, 2017 has seen three distinct developments that may significantly impact management of “Coal Combustion Residuals,” or “CCR,” which include bottom ash, fly ash, boiler slag, and flue gas desulfurization materials generated from burning coal at steam‑powered electricity plants. Although one of these developments may provide a degree of regulatory relief, the other two may preserve or even strengthen existing regulatory requirements.
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Horn_Robert
Robert Horn
Adam Sachs
Adam Sachs

During his confirmation hearing to become Secretary of Energy, former Texas Governor Rick Perry sensibly walked back his 2011 recommendation that the Department of Energy (DOE) be eliminated. After a few weeks on the job, it is now apparent that the secretary not only thinks the DOE should continue to exist but recognizes it’s an essential element of our national security.

President Trump’s inaugural address called for an “America First Energy Plan.”  Although admittedly short on details, the Trump plan seems to
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No RegulationsAs we reported in a previous blog post, President Trump’s Chief of Staff Reince Priebus issued a memorandum entitled “Regulatory Freeze Pending Review” to all federal executive departments and agencies implementing a regulatory freeze on new and pending regulations.  This post provides some further information and insight into the freeze and the specific impacts it has had and will have on final and proposed environmental, health, safety, and pipeline regulations.

Technically speaking, the directive is not an executive order and does not have the effect of law.  Thus, federal agencies are left with considerable discretion regarding how to implement it.  The directive was issued with the intent of
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Horn_Robert
Bob Horn
Adam Sachs
Adam Sachs

I’m Adam Sachs, a partner in Husch Blackwell’s energy practice and a registered DC lobbyist. I will be joined in these semi-regular blog posts by my colleague and longtime Washington lawyer, Bob Horn.  Bob served in the Ford administration, ran Detroit Edison’s federal affairs operations, co-founded the Republican National Lawyers Association, and most recently served as a member of the Trump transition team.  I have extensive Capitol Hill experience, having served in senior policy and legal positions since the mid-1980’s.  My most recent Hill gig was serving as committee counsel to now assistant Democratic leader James Clyburn of South Carolina.
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Electric power stationPower plants in 22 states will be required to further reduce nitrogen oxides (NOx) emissions under a new regulation finalized by the Environmental Protection Agency (EPA) on September 7. The final Cross-State Air Pollution Rule (CSAPR) Update establishes new statewide emissions budgets intended to address pollution that affects the ability of downwind states to meet and maintain the 2008 ozone standard of 75 parts per billion. This is the first time that the EPA has updated an existing program to address interstate transport of air pollution under a new air quality standard. The rule takes effect in May 2017.
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