The United States District Court for the District of Massachusetts has ruled pollution from a Cape Cod resort that travels through groundwater into the Atlantic Ocean is not subject to Clean Water Act permitting requirements.  Conservation Law Foundation v. Longwood Venues & Destinations, Inc., No. 1:18-cv-11821 (November 26, 2019, D. Mass.).  The Complaint alleges treated wastewater seeps through the groundwater into Wychmere Harbor from a wastewater treatment facility at the Massachusetts Wychmere Beach Club on Cape Cod.  The Massachusetts Department of Environmental Protection found that the discharges were partially responsible for excessive nitrogen in the harbor.

The Conservation Law Foundation filed two lawsuits, one under the Clean Water Act (“CWA”) and one under the Resource Conservation and Recovery Act (“RCRA”).  The Court allowed the RCRA claims to go forward, but dismissed the CWA claims, citing the EPA’s April 2019 federal policy change on permitting requirements. 

In April 2019, the EPA announced a departure from the agency’s previous position that permits are required for pollution into groundwater that is “hydrologically connected” to a surface water.  Under the new policy, the CWA no longer requires permits for pollution which moves through groundwater before reaching federally regulated surface water, such a lake, river or ocean.

In reaching its decision, the Court deferred to the EPA’s interpretation of the CWA even though “at first blush” the statute’s language appears to cover pollution via groundwater.  The primary question was whether the EPA’s interpretation is reasonable under the statute.   The Court noted the law’s history and structure indicated it was meant to leave groundwater regulation to the states, and that applying a “literal meaning” would allow the law to “spiral off into absurdities,” such as punishing homeowners who use septic systems. 

The opinion appears to be the first based upon the EPA’s new interpretation.  More lower courts could follow the District of Massachusetts opinion and rule without waiting on a decision from the United States Supreme Court, which is expected to rule this Spring on the reasonableness of the EPA’s interpretation in County of Maui v. Hawai’i Wildlife Fund, No. 18-260.