The U.S. Senate Committee on Environment and Public Works held a hearing on April 18, 2018, entitled “The Appropriate Role of States and the Federal Government in Protecting Groundwater.” Persons providing testimony included the following: Anthony Brown, a hydrologist; Attorney Frank Holleman from the Southern Environmental Law Center; Joe Guild, from the National Cattlemen’s Beef Association; Martha Clark Mettler, Assistant Commissioner of the Indiana Department of Environmental Management on behalf of the Association of Clean Water Administrators; and Attorney Amanda Waters, from the National Association of Clean Water Agencies. The focus of the hearing was the federal government’s proper role in regulating groundwater pollution under the Clean Water Act (CWA), including whether a permit under the National Pollution Discharge Elimination System (NPDES) should be required to cover sources of pollutants that enter groundwater and then move into surface waters covered under the CWA as “waters of the United States.” Currently, a NPDES permit is required in many circumstances for discharges of pollutants via a point source directly to surface waters.

The hearing comes on the heels of two recent decisions of the Circuit Courts of Appeal in the Fourth and Ninth Circuits. Each concluded that unpermitted point source discharges of pollutants to groundwater, which has a direct hydrogeological connection to surface waters of the U.S., violate the CWA. Accordingly, enforcement proceedings under the citizen suit provisions of the CWA were permitted to proceed. These decisions have been widely reported as portending an expansion of CWA jurisdiction, a point which was the focus of the Committee hearing. The Committee was divided along party lines with Republican members expressing concern over the federal government exerting too much authority in an area where states already regulate and Democrats concerned about the damage groundwater pollution causes the nation’s waterways.

The hearing also followed the recent Request for Comment by the U.S. Environmental Protection Agency (EPA) on the same subject discussed in my Feb. 23, 2018 blog post. To date, comments primarily come from anonymous members of the public, but we can expect industry, trade associations and environmental groups to weigh in before the May 21, 2018 deadline.

Look for a blog after the comment period closes for a recap of the comment filings. This issue is not going away as both the Second Circuit and Sixth Circuit have cases pending which could add to the discourse on the subject.