REGIONAL— The Trump administration quietly announced last week that it is reinterpreting language in the federal Clean Water Act to eliminate the regulation of pollutants discharged to groundwater. The decision, which was posted April 15 to the website of the Environmental Protection Agency, could have significant repercussions for the regulation of mining pollution in northeastern Minnesota.

At issue is whether water discharge permits, known as NPDES permits, granted under the federal Clean Water Act, can regulate discharges to groundwater. While the language of the Clean Water Act appears to apply solely to discharges into surface waters, both state and federal regulators have determined that the law also applies to groundwater that is “hydrologically-connected” to surface waters. Since ground and surface waters frequently intermingle, pollutants discharged into groundwater can potentially impact nearby lakes, rivers, or wetlands. Recent scientific studies have suggested that the proposed Twin Metals mine, for example, could impact water quality in downstream portions of the Boundary Waters Canoe Area, but most of those studies predict the contamination would result primarily from movement of contaminants into wilderness lakes and rivers through connection to groundwater.

Because groundwater can transport pollutants into surface waters, the EPA has consistently concluded that the Clean Water Act applies to groundwater when it is shown to be connected with nearby surface waters— and that’s an interpretation that federal appellate courts in both the Ninth and Fourth Circuits have affirmed. The U.S. Supreme Court will hear an appeal of the Ninth Circuit case in the fall.

Industry groups have encouraged the Trump administration to reinterpret the law to classify surface water contamination that might result from discharging pollutants to nearby groundwater to be a “non-point source” of pollution. Under the Clean Water Act, only point sources of pollution, such as discharges from an industrial plant, are subject to the regulation of the EPA, while the regulation of non-point sources of pollution is handled primarily by the states. Non-point sources of pollution are generally more diffuse in their origins, and often result from water runoff over a landscape that might contain industrial chemicals, agricultural fertilizers, pesticides, or other such pollutants.

In a May 21, 2018, letter to the agency, the Global Energy Institute, which represents a long list of major industrial companies in the U.S., encouraged the Trump administration to conduct a notice-and-comment rulemaking process in order to change the agency’s interpretation of the law. In their 2018 letter, the group argued that the agency had been inconsistent on the issue for a number of years and needed to clarify that the CWA does not apply to groundwater. The group stated that other federal laws, such as the Safe Drinking Water Act, along with some state and local laws, regulate the safety of groundwater when used for drinking.

The Trump administration took the advice of industry and solicited comments on the proposed change beginning last year. The administration, in its April 15 release, indicated that it received more than 50,000 comments, but did not provide a detailed assessment of the views expressed in those comments.

Environmental groups have been trying to spread the word about the Trump administration’s latest decision, and some aren’t mincing words. “The American people should be paying attention beyond the headlines and the payoffs to porn stars,” said Water Legacy legal counsel and advocacy director Paula Maccabee. “What they are doing to the environment is appalling and will have long-term implications to the environment and the public’s health.”

While Maccabee acknowledges that other laws do pertain to groundwater, she said laws like the Safe Drinking Water Act don’t address the impact that groundwater contamination can have on surface waters and the aquatic life that they contain.

While the administration’s decision to reinterpret the law is raising hackles from environmentalists, it likely won’t be the last word, says Aaron Klemz, spokesperson for the Minnesota Center for Environmental Advocacy. Klemz said the upcoming Supreme Court case, known as County of Maui v. Hawai’i Wildlife Fund, is likely to yield a more permanent decision. “What the administration has done is dangerous and wrong, but the Supreme Court could overrule.” If the administration’s reinterpretation does stand, Klemz said it would make it harder to regulate many types of polluters.

At the same time, Klemz said the EPA’s reinterpretation of the Clean Water Act would likely face a lawsuit of its own, mostly over process. “The bottom line is we built these regulatory structures on science and fact,” said Klemz. “You can’t just dismantle them based on ideology.”

A recent analysis of how the Trump administration has fared in the courts showed that the administration has won just six percent of the cases filed against it. That compares to 70 percent, on average, for most previous administrations.

“You have to show the basis for what you’re doing,” said Klemz. “That’s why they have lost many of these cases. You have to do the work.”