By Nick Goldstein, vice president of regulatory & legal issues, ARTBA
The U.S. Environmental Protection Agency (EPA) April 23 proposed not to expand Clean Water Act (CWA) jurisdiction to include discharges into subsurface groundwater. Recent federal court decisions have clouded this aspect of the agency’s CWA enforcement, which it typically has not regulated.
A year ago, ARTBA asked the agency to reject the theory that federal jurisdiction extends to groundwater. For the transportation construction industry, such CWA enforcement would lead to similar delays anticipated by the 2015 “waters of the United States” (WOTUS) rule, now in the process of being repealed by EPA. Broadened jurisdiction, ARTBA warned, “would literally leave no transportation project untouched regardless of its location, as there is no area in the United States not linked to at least one source of groundwater.”
ARTBA intends to submit comments supporting EPA’s position on groundwater discharge. The agency is taking comment on their proposal until June 7.
On a related note, the U.S. Supreme Court is also preparing to hear the case of County of Maui v. Hawaii Wildlife Fund, which will consider whether or not the CWA applies to discharges into groundwater.