EPA Seeking Comment on Regulating Discharges of Pollutants into Groundwater in Clean Water Act

April 11, 2018
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The EPA is Requesting Comments on its Previous Statements regarding the Clean Water Act

The U.S. Department of Environmental Protection (EPA) is requesting comments on its previous statements regarding the Clean Water Act (CWA). The specific issue is whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.

Regulation of Groundwater in Clean Water Act

Photo courtesy of Aaron Burden (Unsplash.com)

Regulatory Framework of Clean Water Act

The CWA regulates discharges of pollutants to the waters of the United States with the intent to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The statute expressly prohibits any “discharge of any pollutant” to “navigable waters” unless it is authorized by statute, generally by a permit under the National Pollutant Discharge Elimination System (NPDES).

CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” A pollutant includes “dredged spoil, solid waste, incinerator, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas”; and a “point source” 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.”

Interpretations of the CWA’s “Discharge of a Pollutant” Provision

In prior environmental rulemaking and guidance, the EPA has not stated that CWA permits are required for pollutant discharges to groundwater in all cases, but rather that pollutants 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 may require such permits.

In suits involving the CWA, courts have addressed whether regulation under the CWA of point source discharges of pollutants includes regulation groundwater releases. Some courts have determined that the statute does not explicitly answer this question, while others have held that the statute does not extend to releases to groundwater. Other courts have interpreted the CWA as covering not only discharges of pollutants to navigable waters, but also releases of pollutants that travel from a point source to navigable waters over the surface of the ground. As one court noted, “the inclusion of groundwater with a hydrological connection to surface waters has troubled courts and generated a torrent of conflicting commentary.” Potter v. ASARCO, Civ. No. S:56-cv-555, slip op. at 19 (D. Neb. Mar. 3, 1998).

Most recently, the Ninth Circuit Court of Appeals held in Hawaii Wildlife Fund v. City of Maui that a point source discharge to groundwater of “more than [a] de minimis” amount of pollutants that is “fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into a navigable water” falls under the purview of the CWA. You can find a more detailed discussion of the case here.

EPA’s Request for Comment

Given the legal uncertainty, the EPA is seeking comments regarding whether it should review and potentially revise its previous statements concerning the applicability of the CWA NPDES permit program to discharges to surface waters via groundwater. Specifically, the EPA seeks comment on whether subjecting such releases to CWA permitting is consistent with the text, structure, and purposes of the CWA.

If the EPA has the authority to permit such releases, it wants to know whether those releases would be better addressed through other federal authorities as opposed to the NPDES permit program. Furthermore, the EPA is soliciting feedback regarding whether some or all such releases are addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs, such as, for example, state programs that implement EPA’s underground injection control regulations promulgated pursuant to the Safe Drinking Water Act.

The EPA is also soliciting comments on whether it should clarify its previous statements concerning pollutant discharges to groundwater with a direct hydrologic connection to jurisdictional water in order to provide additional certainty for the public and the regulated community. According to the EPA, “[s]uch a clarification could address the applicability of the CWA to groundwater with a direct hydrologic connection to jurisdictional water or could define what activities would be regulated if not a discharge to a jurisdictional surface water (i.e., placement on the land), or which connections are considered ‘direct’ in order to reduce regulatory uncertainties associated with that term.”

In addition, the EPA is requesting suggestions on what issues should be considered if it decides to provide further clarification, such as the consequences of asserting CWA jurisdiction over certain releases to groundwater or determining that no such jurisdiction exists. Finally, EPA seeks comment on what format or process EPA should use to revise or clarify its previous statements (e.g., through memoranda, guidance, or in the form of rulemaking) if it pursues further action. Comments must be received on or before May 21, 2018.

If you have any questions about the Clean Water Act, 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.