Discharge to groundwater not Clean Water Act violation.

Byline: Eric T. Berkman

A new Environmental Protection Agency rule holding that the federal Clean Water Act does not regulate discharges of pollutants into groundwater that flows into navigable waters is entitled to Chevron deference, a U.S. District Court judge has decided.

As a result, the judge found that a citizens' suit brought against defendants allegedly responsible for the discharges could not proceed under the CWA.

The Conservation Law Foundation, the plaintiff in the case, brought an action against the operators of the Wychmere Beach Club, a resort complex in Harwich Port, alleging that the club violated the CWA when its wastewater treatment facility discharged nitrogen from leach pits into groundwater that flowed into the ocean.

The defendants argued that because the CWA was unclear as to whether it regulated such discharges, the EPA's recent interpretation was entitled to deference under the U.S. Supreme Court's 1984 decision in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., which compels federal courts to defer to a federal agency's reasonable interpretation of an ambiguous statute. Thus, the Conservation Law Foundation could not proceed under the act.

Judge William G. Young agreed, entering a declaratory judgment for the defendants.

"Since the CWA is ambiguous on the precise question before the court, it is for the administering agency to supply a reasonable construction," Young wrote, explaining that the CWA gives the EPA a "breathtaking mandate" to defend the waters of the United States from identifiable contaminators while it leaves groundwater regulation to the states, resulting in policy choices that "defang" each other while creating confusion. "This the EPA has done."

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Conservation Law Foundation v. Longwood Venues & Destinations, Inc., et al., Lawyers Weekly No. 02-499-19 (50 pages)

THE ISSUE:Was a new Environmental Protection Agency rule stating that the federal Clean Water Act does not regulate discharges of pollutants into groundwater that then flows into navigable waters entitled to Chevron deference?

DECISION:Yes (U.S. District Court)

LAWYERS:Ian D. Coghill and Heather A. Govern, of Conservation Law Foundation, Boston; Christopher M. Kilian of Conservation Law Foundation, Montpelier, Vermont (plaintiff)

Emily Kanstroom Musgrave, Andrew N. Nathanson and Jeffrey R. Porter, of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Boston (defense)[/box]

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