On February 20, the Environmental Protection Agency published in the Federal Register a request for comments on a longstanding EPA policy regarding the question of whether and to what extent discharges to groundwater might be covered under the Clean Water Act (CWA). EPA is also seeking comment on specific aspects of the central question. The notice can be viewed here (Federal Register 02/20/2018).
This request involves EPA policies that are not necessarily well known, but which are based on certain basic provisions of the CWA. The Act specifically prohibits discharge of any pollutant to navigable waters unless authorized by statute. Such authorization includes discharge under a permit issued under the National Pollutant Discharge Elimination System (NPDES). The CWA further defines discharge of a pollutant to be "from any point source." In turn, a point source is defined as a type of discreet conveyance but also includes "any conduit, well, or discreet fissure."
Over the years, EPA has issued a number of statements regarding the extent of the scope of the CWA as it may involve groundwater, and some of these are recounted in the notice. At this point, the EPA position appears to be that an NPDES permit might be required where it is determined that a discharge to surface waters occurs by way of a direct hydrologic connection from the original source of the pollutant.
On the other hand, the courts have taken a variety of approaches to the question. Some have focused on whether the CWA authorizes regulation at all, and opinions have come down on both sides. Other courts have accepted the authority to regulate such discharges, but have taken different positions with respect to the specifics of a hydrologic connection.
In an effort to resolve this, EPA has requested comments on the policy in general and with respect to specific aspects of the situation. Thus, the overarching request seeks comment on whether EPA should undertake a review and possible revision of its previous statements concerning the applicability of the NPDES permit program to discharges to groundwater which reach jurisdictional surface waters. Within that, the agency is seeking comment on whether CWA permitting is consistent with the Act itself and, if so, whether such releases are adequately addressed already by other federal programs or corresponding state and tribal programs.
The deadline for comments is May 21, 2018.