The Proposed Waters of the United States Regulation Muddies Whether the Clean Water Act Governs Discharges from Wastewater Treatment Facilities to Groundwater
Environmental attorney Jeff Porter authored a blog post for the American College of Environmental Lawyers (ACOEL) on the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers' proposed rule amending the definition of "waters of the United States" (WOTUS). The proposed rule represents the latest attempt by the federal government to define WOTUS within the jurisdiction of the Clean Water Act (CWA) and follows the U.S. Supreme Court's Sackett decision that narrowed the scope of CWA protections. It notably excludes groundwater from the definition of WOTUS, which has been and continues to be a source of confusion for courts and industry stakeholders. In his blog, Mr. Porter compares the court's 2020 ruling in Hawaii Wildlife Fund v. Maui, which held the CWA requires a National Pollutant Discharge Elimination System (NDPES) permit for discharges to groundwater that are the "functional equivalent" of a direct discharge to a water of the United States, to Sackett three years later, which seemed to say the opposite. He explains how the newly proposed regulations reflect the majority opinion in Sackett but also reference the court's analysis in Maui, calling on the EPA to clarify whether it intends for any groundwater discharges to be covered by the Clean Water Act to guide courts in future litigation.