Refining the New Topic re Proposed Redifinition of what constitutes the Waters of the United States (Part 2 of 2)


Also on April 15, 2019, in’s filed a second comment on the proposed redefinition, the editors focused on groundwater issues. In that comment they said:

Revised Definition of “Waters of the United States” – Proposed Rule (“the PR”)

Docket ID No. EPA-HQ-OW-2018-014

We are writing, both as editors of and individually, to provide comments on and objections to the proposal by the United States Environmental Protection Agency (“EPA”) and United States Army (“Army”) to redefine what constitutes Waters of the United States (“WUS”)[(The Proposed Regulation or PR)]. In this comment, we will address six issues. Although each issue is part of just one subset of arguments that show why the PR is invalid and should be withdrawn, each issue is independently sufficient to require administrative withdrawal of the proposal or judicial invalidation of the proposal. While our other comment (also being filed today and referred to the “Concurrently Filed Comment”) focuses on issues related to the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”) and more, this comment brings attention to groundwater issues.

The PR generally excludes groundwater from it’s definition of WUS. To quote the PR’s executive summary: “The proposal would exclude from the definition of “waters of the United States” waters or water features not mentioned above. The proposed definition specifically clarifies that “waters of the United States” do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; .”

First, the PR is improper groundwater is quintessentially part of the waters of the US it because ignores interstate boundaries. For example, the Ogallala Aquifer runs underneath the land of 8 different states.      Given this, it is absurd to deny that groundwater which does not obey state boundaries is not WUS.

Second, groundwater is necessarily owned and controlled by the government because no person owns groundwater itself. As     the  California State Water Resources Board acknowledged: “Water rights are property rights, but their holders do not own the water itself. ”


Third, even if the EPA and the Army could legally adopt the PR, the PR’s obvious environmental impacts discussed in detail in the Concurrently Filed Comment and the self-evident impacts of eviscerating the EPA and Army’s ability to protect this  nation’s groundwater means that NEPA requires that multiple EISs be prepare before the PR is adopted.



Moreover, as is explained in the Concurrently Filed Comment, the tremendous public controversy caused by the PR makes an EIS doubly important. See: EPA analogous rule that even when a categorical exclusion from NEPA could apply, NEPA’s requirements apply if “[t]he proposed action is known or expected to cause significant public controversy about a potential environmental impact of the proposed action.” 40 CFR, part 6(B) section 204(b)(8). In the present case, two weeks before the end of the comment period, over sixty thousand public comments have already been submitted making the preparation of an EIS critical. Compliance with NEPA through preparation of a proper EIS will refine the public’s understanding of the risks presented by the proposed action and educate the EPA, Army and the general public.  In the present case, an EIS is required. The PR cannot be adopted before EPA and Army prepare a proper EIS for the regulation.


Fourth as is explained in the Concurrently Filed Comment, the Resource and Programmatic Assessment for the Proposed Rule   (“Assessment”) is illogical and patently invalid. For example, the Assessment concedes that the Assessment’s ”exploratory analysis cannot appropriately or accurately assess the potential effects of the proposed rule on PWSs.”  Assessment, page 109. The concession is honest but that is why NEPA requires that a full EIS which can analysis the PR’s devastating effects on PWSs.  See, e.g., (site has both onsite  and offsite groundwater contamination)


Indeed,  as is explained in the Concurrently Filed Comment, a full EIS is required to carefully examine each of the PR’s numerous potential impacts, including, but not limited to the PR’s potential impacts that are discussed in pages 109 to 114 of the Assessment. Protests that the agencies cannot do  an adequate job at the assessment stage (page 109) simply underscores the need for a full EIS. Similarly, acknowledging the agencies’ ignorance and “solicit[ing] public comment and data” to better assess the PR’s impact on page 110 does not excuse the agencies’ failure to prepare the required EIS.


Nor does the agencies’ idle speculation that local state, municipal or tribal government may address and even solve the environmental problems caused by the PR (see, e.g., Assessment pages 110 and 113) obviate NEPA’s EIS requirement.


Fifth, the Agencies’ decision to lump numerous complex issues into as single programmatic assessment is a particularly galling abuse of programmatic NEPA tools since each of the many statutes impacted the PR requires a separate EIS to analyze and publicly disclose the PR’s multiple environmental impacts with respect to the statute.

Sixth, even if one incorrectly concludes that groundwater is not automatically WUS, when groundwater connects to undisputed WUS federal courts may find that federal law applies.   “And although EPA has taken the position that the CWA leaves groundwater regulation and nonpoint-source pollution control to the states, that has not stopped litigants from arguing that the federal CWA regulates discharges of pollutants to groundwater that ultimately reach waters of the United States. Indeed, EPA has also taken the position that in some circumstances federal permits may be required for such discharges when a direct hydrological connection between subsurface and surface waters is present. Cases involving such claims have considerably increased in recent years. In 2018, the Fourth, Sixth, and Ninth U.S. Circuit Courts of Appeals reached different conclusions on this issue.”  (noting the circuit split).


In sum, given the Assessment’s numerous defects, the PR cannot be adopted before EPA and Army prepare a separate proper EIS for the regulation’s environmental impacts as to each affected statute.


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