Lahaina Injection Wells: EPA won't regulate pollution that moves through groundwater

EE News, April 16, 2019 (excerpt)

… EPA won't regulate any pollution to surface waters that passes through groundwater.

The Clean Water Act regulates pollution to surface water and requires permits for so-called point-source discharges to them.

But questions have remained about whether the law regulates any pollution that ends up in surface waters, or only direct discharges.

EPA now says it's the latter.

"The agency concludes that the best, if not the only, reading of the Clean Water Act is that Congress intentionally chose to exclude all releases of pollutants to groundwater from the [point source] program, even where pollutants are conveyed to jurisdictional surface waters via groundwater," the agency wrote in an interpretive statement posted online last night.

If pollution travels through groundwater, EPA says, it "breaks the causal chain" between a source of pollution and surface waters.

That could affect regulation of pollution from a variety of sources, including seepage from coal ash and manure management ponds, sewage collection systems, septic system discharges, and accidental spills and releases.

The guidance comes as the Supreme Court is preparing to hear arguments on the same issue.

But the memo contradicts arguments EPA and the Department of Justice made on the same case three years ago.

"The case law does not require the means by which the pollutant discharged from a point source reaches a water of the United States to be a point source," the agencies wrote in a brief to the 9th U.S. Circuit Court of Appeals in County of Maui, Hawaii v. Hawai'i Wildlife Fund….

read … EE News

Feb 19, 2019: WOTUS: Lahaina Injection Wells Case to be Heard by US Supreme Court