SACRAMENTO – California Attorney General Xavier Becerra, as part of an 11 state coalition, today filed a comment letter denouncing the U.S. Environmental Protection Agency’s (EPA) actions to abandon protections of rivers, creeks and lakes under the Clean Water Act (CWA). On April 23, 2019, the EPA issued new guidance that would exclude any discharge of pollutants that reach waters of the United States through groundwater from CWA permitting requirements. The new guidance contradicts EPA’s prior long-standing position regarding indirect discharges to waters of the United States and is in conflict with the CWA and Supreme Court case law. EPA’s guidance would give polluters free rein to direct pollutants such as wastewater, sewage, and industrial runoff into groundwater that is connected to a river, creek or a lake and avoid CWA liability for polluting these waterways.
“The EPA should get back to its mission of protecting the environment, not polluters,” said Attorney General Becerra. “The EPA’s plan to roll back Clean Water Act protections and allow polluters to threaten the health of Americans is unlawful. If you pollute a waterway, you should bear the costs of damage done to public health and the environment.”
In conflict with the CWA, the EPA’s plan would severely undermine CWA’s effort to protect and improve the quality of U.S. waters. The coalition argues that indirect discharges of pollutants into these waters are subject to CWA permits under the law. California maintains a strong interest in upholding these protections, as our state is authorized to issue CWA permits to safeguard water quality and relies on them to protect California waters from out-of-state pollution. Additionally, aside from CWA, no other federal statute or program provides these protections against the indirect discharges of pollution into U.S. waters.
The Attorneys General assert in the comment letter that the EPA’s action is more than an interpretation, but rather a legislative agency rule and subject to the federal Administrative Procedure Act. By issuing the rule without prior notice and opportunity for public comment, EPA’s action is unlawful.
Attorney General Becerra filed the letter along with the Attorneys General of Maryland, Colorado, Connecticut, the District of Columbia, Maine, Massachusetts, Michigan, Oregon, Rhode Island, and Vermont.
A copy of the letter can be found here.