On November 26, 2019, a Massachusetts District (trial level) Court Judge dismissed the case of Conservation Law Foundation v. Longwood Venues & Destinations, ruling the Clean Water Act (CWA) does not regulate discharges into groundwater, even when the groundwater is hydrologically connected to navigable waters.  The District Judge acknowledged the same question is before the US Supreme Court in another Clean Water Act (CWA) citizen suit case, County of Maui v. Hawaii Wildlife Fund.  Based on recent EPA action, the District Judge dismissed the CWA case, thus predicting the US Supreme Court will rule for the County of Maui.

In the Massachusetts case, Conservation Law Foundation (CLF) brought the CWA citizen’s suit, seeking penalties and injunctive relief, based on alleged discharges from a Cape Cod resort’s wastewater treatment system.  This system employs a series of treatment steps ending with twenty-two leach pits over a subsurface gravel layer.  The wastewater travels through the gravel layer to the groundwater and eventually into Wychmere Harbor.  The resort has had a difficult time complying with a state issued permit and has contributed to excessive nitrogen loading in the harbor.

EPA’s Interpretative Statement
The District Judge analyzed EPA’s April 2019 “Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater” (the “Interpretive Statement”), published at 84 Fed. Reg. 16,810 and to be codified at 40 CFR Part 122.  In the Interpretive Statement, EPA concluded the CWA does not regulate discharges to groundwater.  The District Judge noted that while several cases have addressed the issue, no court has decided the issue since EPA issued the Interpretive Statement.

CWA’s Ambiguity and Chevron Deference
The District Judge stated the CWA was “shot through with irreconcilable ambiguity,” which included the issue of discharges into groundwater hydrologically connected to navigable waters.  As such, under the doctrine of “Chevron deference,” based on the US Supreme Court decision in Chevron v. Natural Resources Defense Council, it was up to EPA to “supply a reasonable construction” of the CWA on the issue.

While CLF argued the Interpretive Statement was mere guidance and not a definitive agency interpretation, the District Judge predicted the US Supreme Court will determine courts must give Chevron deference to the Interpretive Statement.

According to the District Judge, the Interpretive Statement concluded EPA must take “a backseat to the states on groundwater.”  While the District Judge indicated the CWA did not require this interpretation, EPA’s construction was reasonable and therefore must be given Chevron deference.  As a result, CLF’s citizen suit was dismissed.

The US Supreme Court will probably decide County of Maui before the summer of 2020; oral arguments were heard November 6 and the transcript is available https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-260_m6hn.pdf