EPA Speaks On Groundwater Permitting Issue

On April 15, 2019, the U.S. Environmental Protection Agency (“EPA”) released a much-anticipated Interpretative Statement on Releases of Pollutants from Point Sources to Groundwater.  Last February, EPA received public comments on whether the Agency should revise or clarify its position on whether National Pollutant Discharge Elimination System permits are required for releases of pollutants to groundwater.  Since then, both regulators and the regulated have been waiting to see how EPA would respond. EPA’s Statement concludes “releases of pollutants to groundwater are excluded from the [Clean Water] Act’s permitting requirements, regardless of whether that groundwater is hydrologically connected to surface water.”  EPA also refers to the fact that states “are the primary regulators of discharges to groundwater within their jurisdiction” and notes that the Agency maintains its authority to protect groundwater and hydrologically connected surface waters through other Congressionally-authorized means (e.g., the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act).

This EPA Statement comes in the midst of SCOTUS review of a Ninth Circuit decision on the same issue and will likely play a pivotal role in that case (County of Maui v. Hawaii Wildlife Fund). EPA has indicated it may take further action on the issue following the Supreme Court’s decision.

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