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U.S. EPA Concludes Pollution Through Groundwater Does Not Require a Federal Discharge Permit

April 18, 2019

The U.S. Environmental Protection Agency (EPA) is seeking public comment on an interpretive statement published April 15, concluding that “releases of pollutants to groundwater are categorically excluded from Clean Water Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities.”  The full interpretive statement is online – click here.  EPA had requested comment on the issue previously; AGC solicited input from member and submitted comments challenging EPA’s consideration of using the CWA permit program to regulate discharges to groundwater eventually making their way to a jurisdictional surface water.  AGC strongly maintains that the CWA’s point source program does not regulate releases that reach “Waters of the U.S.” (WOTUS) via groundwater.  

Still, EPA is seeking additional comments: “Concurrently with issuing its interpretation of the CWA, the EPA is soliciting additional public input regarding what may be needed to provide further clarity and regulatory certainty on this issue.”  The comment period will last until 45 days after the notice appears in the Federal Register.  Again, AGC will work with its members and industry partners on this matter, recognizing EPA for providing much-needed clarity in light of the U.S. Supreme Court’s recent decision to grant certiorari on the issue.

Recent conflicting federal court decisions (Fourth and Ninth Circuit Courts) and the prior lack of clear agency guidance have lead the U.S. Supreme Court to agree to hear a case that will ultimately decide whether the federal government should use the CWA National Pollutant Discharge Elimination System (NPDES) program to regulate discharges to (or through) groundwater that hydrologically connects to a WOTUS.  AGC previously reported on the case: Hawai’i Wildlife Fund v. County of Maui, 886 F.3d. 737 (9th Cir. 2018).  Once the Supreme Court has issued its decision, the agency may take further action if necessary.

For more information, contact AGC’s Leah Pilconis at pilconisl@agc.org.

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