EPA released an interpretive statement on the agency’s stance for the applicability of the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System on releases of pollutants from a point source into groundwater. The notice of availability and request for comment was released April 23 and gives the public until June 7 to provide input.
This statement follows a February 2018 request for public comment regarding whether EPA should review, revise, and/or clarify the agency’s previous statements regarding this issue. Based on public input, and after reviewing past statements and the history, structure and text of the CWA, EPA determined 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.”
The agency’s news release goes on to state that Congress instead “left regulation of those releases to the states and EPA’s other statutory authorities.” EPA clarifies that the agency will still protect groundwaters and hydrologically connected surface waters through its authorities under the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
This recent development has been spurred by a series of ongoing litigations attempting to determine when the CWA applies to pollutants that reach surface waters via a hydrological connection to groundwaters. The Supreme Court is scheduled to hear arguments this fall on a case attempting to answer this question, County of Maui v. Hawai'i Wildlife Fund.