EPA has requested comments on the applicability of the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program to point source discharges from groundwater.
CWA NPDES is the permitting authority for any discharge of pollutants from point sources into navigable waters, and EPA has previously stated, “pollutants discharged from point sources that reach jurisdictional waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional water may be subject to CWA permitting requirements.” The agency has not stated, however, that CWA permits are required in all cases where pollutants discharged from point sources into jurisdictional waters via groundwater.
The agency is seeking public comment on whether it should review or revise the statement, which has been made in previous rulemaking, permitting and guidance documents. In particular, EPA asks whether including these discharges under the permitting purview of the CWA is consistent with the text and intentions of the Act. If it is determined that EPA does in fact have the authority to regulate these discharges, the agency asks for comments on whether the NPDES is the correct permitting authority or if another federal program is more appropriate.
EPA acknowledges “the strong language in the legislative history of the Clean Water Act to the effect that the Act does not grant EPA authority to regulate pollution of groundwaters.” But the question remains whether the agency can and should regulate discharges of pollutants from groundwater sources that are connected to navigable surface waters via a hydrological connection. The notice in the Federal Register reviews numerous court cases with varying views on the matter.
If you have questions or comments on this issue, please contact AMWA’s Regulatory and Scientific Affairs Manager Stephanie Hayes Schlea.