(Ground)waters of the United States: unlawfully excluding tributary groundwater from Clean Water Act jurisdiction.

• Author: Blumm, Michael C.
• Position: Controversies Surrounding the 2015 Clean Water Rule

1. INTRODUCTION II. FEDERAL AND STATE GROUNDWATER REGULATION OTHER THAN THE CWA A. Safe Drinking Water Act B. Resource Conservation and Recovery Act C. State Groundwater Regulation III. PURPOSES OF THE CWA A. Rivers and Harbors Act: Precursor to the CWA B. The Broad Scope of the CWA C. The CWA and Regulation of Discharges into Groundwater IV. THE SUPREME COURT'S INTERPRETATION OF "WATERS OF THE UNITED STATES" A. United States v. Riverside Bayview Homes B. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers C. Rapanos v. United States V. The 2015 Regulatory Definition of "Waters of the United States" A. The New Regulations B. The Adoption of the "Significant Nexus" Test VI. THE GROUNDWATER EXCLUSION AND JUDICIAL REVIEW A. The Arbitrary Exclusion of Groundwater B. The Groundwater Exclusion and Chevron Deference VII. CONCLUSION "[A]ll water is interrelated and interdependent. If groundwater were red, most streams would be various shades of pink; if groundwater were poisoned, the streams would also be poisoned." (1)

1. INTRODUCTION

   Unlike regulation of surface water pollution, no comprehensive legal structure controls pollution of the nation's groundwater. Various federal statutes, such as the Safe Drinking Water Act (2) and the Resource Conservation and Recovery Act, (3) regulate particular activities affecting groundwater, and state laws attempt to govern groundwater pollution to varying degrees. (4) But over four decades after the dawn of the modern environmental movement (5) there is no uniform regulation of pollution affecting hydrologically-connected groundwater.

   The Clean Water Act (CWA or Act) could provide the uniform protection necessary to comprehensively control an interconnected hydrologic system. (6) The Act has always had the potential to fill this void in water pollution control law. (7) But the Environmental Protection Agency (EPA) has successfully declined to assert jurisdiction over groundwater pollution, (8) and the agency did so again in its 2015 rule defining "waters of the United States," the key jurisdictional referent in the statute. (9) The new rule, promulgated in conjunction with the U.S. Army Corps of Engineers (Corps) in June 2015, (10) and now the subject of what promises to be tortuous litigation, (11) categorically excluded all groundwater. (12) Groundwater not protected under other laws will therefore remain essentially unregulated.

   In the preamble accompanying the 2015 rule, EPA and the Corps explained that its exclusion of groundwater "reflects] the agencies' current practice" and "furthers the agencies' goal of providing greater clarity over what waters are and are not protected under the CWA." (13) We think this position is irrational. There is no historical, textual, or functional basis for asserting jurisdiction over surface waters that are tributary to navigable waters while denying jurisdiction over groundwater that is tributary to those same surface waters. We maintain that by categorically excluding groundwater, the agencies jeopardize "the chemical, physical, and biological integrity of the Nation's waters" inconsistent with the fundamental policy of the CWA. (14) Instead of categorically excluding all groundwater from CWA regulation, we contend that courts should insist that the agencies must their jurisdiction over groundwater according to case-specific analyses. (15)

   The 1972 amendments to what is now the CWA created a nationwide program for regulating water pollution, (16) employing a system of permit schemes, (17) technological requirements, (18) and discharge limits based on a particular water's uses. (19) The Act extended regulation to "navigable waters," defined as "waters of the United States," (20) although it did not define the latter terms. EPA and the Corps proceeded to promulgate regulations delineating the scope of "waters of the United States" beginning in 1973. (21) Largely in response to subsequent judicial decisions interpreting the CWA and the agencies' regulations, (22) EPA and the Corps proposed a new definition of "waters of the United States" in April 2014. (23) That new definition, made final in June 2015, placed bodies of water into three different categories: 1) those subject to federal jurisdiction by rule; 2) those that may be jurisdictional based on a case-specific analysis; and 3) those excluded from federal jurisdiction by rule. (24) The agencies put all groundwater into the third category, excluded from the CWA's jurisdiction. (25)

   The rule is regrettable--and we think unlawful--because of the important role groundwater plays in human health, the economy, and the environment. (26) Groundwater supplies a third of the public water supply in America's cities and a colossal ninety percent of drinking water in rural areas. (27) In addition, groundwater makes up forty-two percent of the water used on the nation's farms and ranches. (28) In addition to its human uses, groundwater plays a critical role in the health of other bodies of water. (29) For example, discharge of groundwater into other ecosystems recharges surface waters, supporting biodiversity of plant and animal species. (30) These effects constitute a "significant nexus" between tributary groundwater and nearby navigable, interstate, or territorial waters under the test that Justice Kennedy endorsed in Rapanos v. United States (Rapanos): (31) We contend that this "significant nexus" test makes the rule's categorical exclusion of groundwater from CWA jurisdiction unlawful. (32)

   There is quite a bit of literature on groundwater regulation, or the lack thereof. (33) But this Article argues that, although the agencies' criteria for determining CWA jurisdiction under the new rule are legally and scientifically sound, groundwater that is tributary to surface water satisfies those criteria, and therefore should not be categorically excluded. In this article we explore the inconsistencies and contradictions of the CWA jurisdictional rule as it pertains to groundwater.

   On one hand, the agencies maintain that, in order to fulfill their statutory obligation to protect the waters of the United States, "[t]he entire tributary system of the navigable waters has to be subject to the [CWA.]" (34) In addition, for the first time, the rule provides a scientific framework, based on the "significant nexus" test, for placing waters under CWA jurisdiction. (35) As discussed below, this approach to determining the scope of CWA jurisdiction is consistent with both case law interpreting the Act and the latest science regarding the interconnectivity of bodies of water. (36)

   On the other hand, however, the agencies proceeded to exclude from jurisdiction groundwater that may be part of a tributary system and may meet the "significant nexus" standard. (37) This exclusion contradicts both the Act, as interpreted by numerous courts, (38) and the EPA Science Advisory Board's conclusions about the significant effect that groundwater has on the health of surface waters. (39) Consequently, the agencies' decision to categorically exclude all groundwater from CWA regulation is arbitrary and capricious, undermining the agencies' efforts to fulfill the Act's purposes of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." (40)

   This Article examines Congress' intent in enacting the CWA and asserts that the categorical exclusion of groundwater from CWA jurisdiction contradicts that intent. Part II begins by discussing the existing patchwork of laws protecting groundwater. Part III explains the circumstances that led to the CWA, the lower federal courts' jurisprudence addressing the scope of "waters of the United States," and the evolution of the "significant nexus" test. Part IV reviews the Supreme Court's attempts to clarify the scope of the Clean Water Act. Part V describes the new regulatory definition of "waters of the United States" and the agencies' adoption of the "significant nexus" test. In Part VI we conclude that reviewing courts should strike down the rule's categorical exclusion of groundwater from CWA jurisdiction and instead require jurisdictional determinations to be a function of case-specific application of the "significant nexus" test.

2. FEDERAL AND STATE GROUNDWATER REGULATION OTHER THAN THE CWA

   Before turning to the CWA, we briefly discuss other federal and state laws regulating the contamination of groundwater. The Safe Drinking Water Act (41) and Resource Conservation and Recovery Act provide the most noteworthy federal regulation of groundwater. Unfortunately, Congress did not intend either of these laws to comprehensively protect groundwater, and they do not. (42) At the state level, regulation varies wildly among jurisdictions. (43) These inconsistent protections fail to prevent groundwater contamination in an interconnected hydrologic system.

   1. Safe Drinking Water Act

      Congress enacted the Safe Drinking Water Act (SDWA) "to assure that the water supply systems serving the public meet minimum national standards to protect consumers from harmful contaminants." (44) In addition to authorizing drinking water standards, the SDWA created three programs that do supply some groundwater protection. The first two, the wellhead injection program (45) and the sole source aquifer demonstration program, (46) require states to create plans to prevent contamination of public water systems and aquifers that are the sole or primary source of drinking water for an area. States can then apply for federal funds to share the cost of implementing the plans. (47)

      The underground injection control (UIC) program is the third way in which the SDWA protects groundwater. (48) This program allows the federal government or approved states to issue permits for underground injection of fluids consistent with regulations that "contain minimum requirements for effective programs to prevent underground injection which endangers drinking water...