Imagine this scenario: a company releases pollutants from a pipe a few feet short of a waterway. The pollutants do not directly discharge into the waterway, but travel a short distance underground before entering the water. This discharge of pollution is not regulated by the Clean Water Act, and therefore the company can legally put unlimited amounts of pollutants into the waterway.
This would be an absurd loophole in the Clean Water Act. It would also create perverse incentives—every polluter could avoid legal responsibility for its water pollution as long as it discharged next to a waterway instead of directly into it. Meanwhile, our waterways would become more and more polluted, obliterating the objective of the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” This is why the U.S. Environmental Protection Agency (EPA) and courts have historically interpreted the Act to regulate pollutants that travel a short distance through groundwater, soils, or the air before reaching surface waters. Incredibly, EPA is now considering a change to this long-standing interpretation and is asking for comments on whether discharges like these should really be regulated under the Clean Water Act.
There is no question of the motivation behind EPA’s decision to open the door to eviscerating the Clean Water Act. Wealthy polluters, many with connections to President Trump and Administrator Pruitt, have a lot to gain if EPA decides that all pollutants discharged into groundwater are no longer covered by the Clean Water Act. This means these discharges would no longer be regulated under the Act, and members of the public — like Waterkeeper Organizations and Affiliates — would be unable to use the Clean Water Act’s citizen suit provision to bring lawsuits aimed at stopping pollution.
For example, Savannah Riverkeeper has been working for years to force Kinder Morgan to clean up a 2014 pipeline spill that is still leaking gasoline today. “In Belton, SC, more than 350,000 gallons of gas and diesel leaked from a pipe into the groundwater which reaches the Savannah River, and has still not been properly cleaned up,” said Savannah Riverkeeper Tonya Bonitatibus. “The Clean Water Act is one of the few protections rural communities like these have. Without proper regulation, their water and livelihoods are put at risk.”
EPA is currently collecting public comments on whether the Clean Water Act should apply to pollutants discharged to groundwater which then directly travel a short distance to pollute surface waters. Please stop EPA from gutting the Clean Water Act by creating this massive loophole. The comment period will be open until May 21. Here is a template to get you started:
“I am writing to express my opposition to EPA ‘revising’ its long-standing position on the applicability of the Clean Water Act to pollutants that travel via groundwater to surface waters. The Clean Water Act clearly applies to these discharges. To find otherwise would create a massive loophole in the law that would render major parts of the Clean Water Act useless.
If EPA were to find that discharges that travel via groundwater to surface waters are not regulated under the Clean Water Act, many currently known sources of water pollution would remain unaddressed. Furthermore, this would perversely incentivize companies to change their operations to release pollutants into the ground near waterbodies as a way to avoid Clean Water Act regulation and liability.
The current widespread instances of groundwater contamination and examples of pollutants entering surface water via groundwater demonstrates that we already lack adequate regulation over these discharges. Changing EPA’s interpretation of the Clean Water Act would lead to far more contamination of groundwater and surface water. The Clean Water Act was intended to clean up the nation’s waterways, and EPA’s mission is to protect human health and the environment. Exempting discharges of pollutants that travel via groundwater would drastically undermine both of these missions.”