Editor’s  note: This posting was authored by Mark Ryan. Ryan is an nationally acknowledged Clean Water Act expert. He  had a decades-long legal career with  the Environmental Protection Agency and served on the committee that drafted the 2015 Clean Water Rule. Formerly of Boise, he now lives Winthrop, WA, where he has a  private legal  practice.

The Environmental Protection Agency (EPA) is undertaking a rulemaking that could significantly affect Idaho waters. On Feb. 20, 2018, EPA published in the Federal Register a notice entitled, "Clean Water Act Coverage of ,Discharges of Pollutants’ via a Direct Hydrologic Connection to Surface Waters." In the notice, EPA seeks comment on whether hydrologically connected discharges should be covered by the Clean Water Act (CWA) and whether other state or federal laws would better regulate such discharges. The comment period closes on May 21, 2018.

Hydrologically connected discharges are those that occur usually a short distance from a river or lake but make it into the water via shallow subsurface groundwater. A good example is coal ash piles next to coal-fired power plant. The power plants are located next to rivers for cooling, and the ash piles are usually also next to the river. As rainwater filters through the piles, the contaminated leachate enters the groundwater below the pile and that groundwater is usually connected to the river.

This is an important issue. It has been around for a long time, but EPA has never before addressed it in a formal rule. The courts have been all over the map for many years on whether direct hydrologic connections are covered by the CWA, and they have used different and inconsistent methodologies to determine which discharges are jurisdictional. Most of the case law in this area comes from citizen suits and EPA has remained mostly on the sidelines, opining only obliquely on whether it asserts jurisdiction over these discharges. With this proposed rulemaking, the Trump administration is attempting to resolve the question once and for all.

If EPA decides that such discharges are not covered by the CWA, what is to stop a discharger from constructing a pond next to a river, and discharging untreated wastes to the pond, where they will then seep into the river via groundwater?  Under current law, such a pond would be considered a waste treatment system, so no permit would be required to discharge to the pond. Arguably, the underground discharge from the pond to the river shouldn’t need a permit. the Resource Conservation and Recovery Act (RCRA) might apply if there are hazardous wastes, but conventional pollutants such as biological oxygen demand (BOD), nutrients and total suspended solids (TSS) are not.

This also has implications for the Waters of the United States Rule (WOTUS), which is under consideration by EPA and the U.S. Army Corps of Engineers.  Adjacent wetlands are often hydrologically connected to neighboring rivers, streams and lakes via shallow subsurface groundwater.  If hydrologically connected groundwater cannot serve as a basis for asserting CWA jurisdiction over those wetlands, many, if not most would lose protection under the CWA. EPA clearly is leaning in this direction with the WOTUS rule.

Everyone who is interested in the CWA should comment on this proposal.  The Federal Register notice provides information on how to comment.

– Mark Ryan