Article | March 8, 2021

Let's Work Together To Fix Regulatory Guidance

By Tim Parker

Responsible parties all want clean water and to abide by the rules that secure it, but what if the rules do more harm than good? With a recent Supreme Court decision on wastewater discharges and a change of presidential administrations as the backdrop, this op-ed from the National Ground Water Association addresses the conundrum.

Last year, the Supreme Court of the United States (SCOTUS) issued its ruling in the case Maui County v. Hawaii Wildlife Fund. The case centered on the question of whether pollutants that originate from a point source can be accurately traced to reach (navigable) surface water when transported through groundwater. In a 6-3 decision, SCOTUS ruled that, yes, point discharges should require a permit if they are considered a “functional equivalent of a direct discharge.” The court’s decision ultimately moved the case back down to the lower courts and mandated the U.S. EPA to create guidance on applying the new standard.

The National Ground Water Association is the nation’s leading nonprofit organization representing groundwater professionals from across the industry, including hydrogeologists, water well contractors, and environmental engineers. NGWA recognizes that all water is interconnected (One Water) and has high value, water must be sustainably managed through inclusive stewardships in an integrated manner, and groundwater is a local resource that is an integral part of the solution for sustainability and resiliency. Last year, NGWA filed an amicus brief in the case arguing against increasing the number of permits through the Clean Water Act, in fear that it would become overburdensome to groundwater users and diminish local control of groundwater from states. And while we did not receive the outcome we hoped for from SCOTUS, we are now focused on avenues in which we can provide our collective knowledge and expertise to ensure that new guidance developed by the EPA is created with sound science and is applicable in the field.

In January of this year, the EPA issued a draft memo on its initial guidance to apply the SCOTUS decision to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit program. After reviewing the draft guidance, NGWA issued comments to the EPA indicating that it came up short on many technical aspects that would have made the document a usable and practical resource for its users. NGWA has also reviewed the final guidance issued by the EPA and finds it also comes up short and does not meet the objective of “guidance” on how to meet the requirements laid out by the SCOTUS decision.

"Industries typically want to abide by regulations and know their importance, but they must be given clear and practical guidance on how to do so."

The final guidance document, which was largely unchanged from the draft guidance, is simply too broad and lacks specific focus on pragmatic technical considerations to be applied. It provides almost no specific and consistent indicators of how to determine whether a pollutant discharge that may travel from a point source through groundwater to surface water constitutes a “functional equivalent direct discharge” and a permit may be required, which is at the core of the SCOTUS decision and direction to the EPA. The guidance also includes no instruction or useful direction on how industry or state regulators may evaluate individual sites to prepare for such permits and determine their best course of action. Essentially, the guidance maintains the status quo and in doing so does not address the issues brought forward by SCOTUS.

This “guidance” document and its deficiencies are, unfortunately, indicative of a larger problem endemic in many of our regulatory bodies, and especially those where so much burden falls, such as the EPA. NGWA has the utmost respect for the staff of the EPA, as they work diligently to promulgate and enforce regulations (often mandated to them by outside actors such as courts and legislators) that protect our environment and most valuable natural resources, including groundwater. Many of these agencies, especially in the last four years, have also seen their budgets cut and a drastic increase in politicians invoking their names to stoke the flames of antiregulatory policies. Simply put, regulators do not have easy jobs.

But whether due to lack of sufficient resources, outside pressure from special interests, or a scientific knowledge deficit, the guidance provided tends to be vague and impractical. This not only creates logistical issues for industry and regulators, but also can have negative impacts on our environment. Industries typically want to abide by regulations and know their importance, but they must be given clear and practical guidance on how to do so. This issue, though, cannot fall solely on the EPA or other regulatory bodies. Our industries should be taking more proactive, inclusive roles in working with the EPA to aid them in crafting the guidance that will allow us to follow the regulations they put forward.

NGWA has developed an approach to work with the industry through virtual and face-to-face (hopefully) meetings and events to evaluate potential functionally equivalent NPDES direct discharges using a solid foundation in groundwater science, in order to (1) provide cooperative opportunities for groundwater scientists and other professionals to participate and provide input, and (2) work collaboratively with the EPA, other interested agencies, and other interested professional associations to create practical, useful, and cost-effective technical guidance and associated educational opportunities. The approach includes reviewing the Maui and other relevant and applicable case studies and considering how to best apply the various factors underscored by SCOTUS, including time and distance, pollutant volume, geologic materials, and terrain into a pragmatic framework for application.

Our nation’s groundwater supply plays a vital role in our nation’s One Water security and economy. That is why NGWA works collaboratively every day with its membership, our country’s leaders, and industry to ensure its protection, and why we know creating usable and meaningful guidance to meet regulatory standards is paramount in keeping this invaluable natural resource safe.

NGWA is reaching out directly to the Biden administration and urging them to reconsider the guidance issued by the previous administration and offer our support in creating a more practical and useful document. It is our hope that President Joe Biden’s EPA will begin to view these types of guidance documents as genuine opportunities to work with industry and environmental stakeholders to accomplish our common goals of creating a safe, healthy, and productive environment for us all.

About The Author
Tim Parker, PG, CEG, CHG, is a principal hydrogeologist with Parker Groundwater in Sacramento, CA. Parker serves as a member on the Groundwater Committee of the Association of California Water Agencies, the cochair of the legislative committee for the Groundwater Resources Association of California, and director on the California Groundwater Coalition, and sits on the National Groundwater Association Board as VP of the scientist and engineers division.