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EPA Issues Guidance on Clean Water Act Permitting Requirements


May 1, 2019
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The EPA Recently Issued Highly-Anticipated Clean Water Act Permitting Requirements

On April 15, 2019, the Environmental Protection Agency (EPA) issued highly-anticipated guidance clarifying the application of Clean Water Act (CWA or the Act) permitting requirements to groundwater.  According to the EPA, discharges of pollutants to groundwater are “categorically excluded” from the CWA’s permitting requirements.

The EPA Interpretative Statement comes as the U.S. Supreme Court is considering the same issue in County of Maui v. Hawaii Wildlife Fund.

Prior EPA Guidance on CWA’s Application to Groundwater

As detailed in prior articles, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” without first obtaining a permit under the National Pollutant Discharge Elimination System (NPDES). The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” The statute defines the term “navigable waters” as “waters of the United States, including the territorial seas.” 

In prior environmental rulemaking and guidance, the EPA had taken the position that CWA permits are not required for all pollutant discharges to groundwater. Rather, permits are only required when pollutants are discharged from point sources to jurisdictional surface waters that occur via groundwater or other subsurface flow that has a direct hydrologic connection to the surface water. Under the CWA, a “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”

EPA Interpretive Statement

As highlighted by the EPA, recent conflicting federal court decisions and the prior lack of clear agency guidance regarding whether NPDES permits are required for releases of pollutants to groundwater caused uncertainty regarding how to implement and enforce the NPDES permitting program. Last February, the EPA solicited comments on whether the agency should revise or clarify its position on the CWA’s application to groundwater.

The EPA received more than 50,000 comments from a wide range of stakeholders. According to the EPA, the agency also undertook a comprehensive review of prior agency statements on the matter and “performed a holistic analysis of the text, structure, and legislative history of the CWA.”

The EPA’s resulting Interpretive Statement concludes that Congress excluded releases of pollutants to groundwater from the Act’s permitting requirements, regardless of whether there is a hydrological connection between the groundwater and a water of the United States. According to the agency, Congress instead left regulation of those releases to the states and EPA’s other statutory authorities.

“Informed by [public] comments and based on a holistic analysis of the statute, its text, structure, and legislative history, the Agency concludes that the best, if not the only, reading of the CWA is that Congress intentionally chose to exclude all releases of pollutants to groundwaters from the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater,” EPA wrote.

According to the EPA, Congress purposely structured the CWA to authorize the states to regulate such releases under state authorities. “When analyzing the statute in a holistic fashion, Congress’ intent becomes evident: Congress did not intend for the [point source] program to address any pollutant discharges to groundwater, even where groundwater may be hydrologically connected to surface waters,” the EPA explained.

“While no single provision of the Clean Water Act expressly addressed whether pollutants discharged from a point source that reach jurisdictional surface waters through groundwater are subject to … permitting requirements, when analyzing the statute in a holistic fashion, congressional intent becomes evident,” the Interpretive Statement further explains.

In conjunction with issuing its Interpretative Statement, the EPA is seeking additional public input regarding what may be needed to provide further clarity and regulatory certainty on this issue. The comment period will be open for 45 days after the Interpretative Statement is published in the Federal Register.

Impact on Supreme Court’s CWA Decision

In its guidance, the EPA acknowledged that its position differs from the Fourth and Ninth Circuit Court interpretations of how the CWA applies to discharges to groundwater. The U.S. Supreme Court will have the opportunity to weigh in on the issue next term.

In February, the Supreme Court granted certiorari in County of Maui, Hawaii v. Hawaii Wildlife Fund. The issue before the Court is whether the CWA regulates pollution that reaches surface water via groundwater.

In County of Maui, Hawaii v. Hawaii Wildlife Fund, the Ninth Circuit Court of Appeals adopted an expansive interpretation of the CWA’s reach. It held that that the CWA does not require that the point source itself convey the pollutants directly into the navigable water. According to the Ninth Circuit, the County of Maui was liable under the CWA because (1) the County discharged pollutants from a point source; (2) the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water; and (3) the pollutants reached navigable waters at greater than de minimis levels.

While oral arguments have not yet been scheduled, the justices will presumably take up the case when the term begins in October. Because a federal agency’s reasonable interpretation of an ambiguous statute that it administers is generally entitled to deference from the courts, the EPA’s latest Interpretive Statement could factor into the Supreme Court’s decision. The EPA has also stated that it may take further action if necessary once the U.S. Supreme Court has issued its decision.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.