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NMPF Opposes Extension of Clean Water Act to Groundwater Sources

June 13, 2018

Last February, the U.S. Environmental Protection Agency (EPA) published a request for comment regarding previous statements it made about pollutant discharges from point sources that reach surface waters via groundwater. EPA has said that those discharges may be subject to the Clean Water Act (CWA) if there is a direct hydrological connection between the surface water and groundwater. NMPF joined with other agriculture groups in May in urging EPA to rescind its statements that groundwater could be regulated under the CWA.

NMPF does not believe the CWA should regulate groundwater and that such regulation is best left to the states. NMPF noted that Congress specifically considered and chose not to include groundwater under the CWA. Unfortunately, several courts have re-interpreted the CWA and taken a contrary stance, even though there also have been courts that ruled the CWA cannot regulate groundwater. It is likely the issue eventually will reach the Supreme Court.

NMPF is concerned about regulating farms under the CWA because a fact pattern can be prosecuted as a criminal act, resulting in possible imprisonment for up to six years and financial penalties of up to $100,000 per day. EPA’s past statements on the issue are somewhat ambiguous. One example: “A general hydrological connection between all waters is not sufficient to subject an operator or owner of a point source to liability under the CWA, instead there must be a direct hydrological connection to surface waters.”   Determining if there is a “direct” connection is not easy and there is considerable uncertainty in those determinations.

NMPF and other agriculture groups have asked EPA to initiate rulemaking, retract past statements and make it clear that groundwater pollution should be regulated by state and local governments, not the federal government.