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EPA mulls whether to regulate groundwater under the Clean Water Act

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On February 20, the EPA released an information request to assess whether the agency should regulate pollutants originating from point sources (groundwater and other subsurface flows) that eventually reach surface water via “direct hydrologic connection.” If regulated, this may have an impact on county governments that have storm water infrastructure that “treats” or “stores” water runoff such as groundwater recharge and reuse areas, surface water impoundments, injection wells, treatment lagoons, setting basins and artificially constructed wetlands.

In the notice – Clean Water Act Coverage of “Discharge of Pollutants” via a Direct Hydrologic Connection to Surface Waterthe EPA is considering whether it should review and revise the agency’s groundwater stance on the Clean Water Act’s (CWA) National Pollution Discharge Elimination System (NPDES) permit program. EPA currently regulates groundwater and subsurface flows on a case-by-case basis. Traditionally, groundwater and subsurface flows have been regulated under state law.

While the information request is not directly linked to a court decision, a number of cases have popped up around the country on groundwater conduit theory of liability. On February 1, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s decision in Hawaii Wildlife Fund v. County of Maui finding that wastewater injection wells can be a regulated pollution source under the CWA. Other similar cases are in the Second and Fourth Circuit Courts.

In the notice, EPA requests information on the following questions:

  1. If EPA regulates groundwater/subsurface flows under the NPDES permit program, is that consistent with the text, structure and purposes of the CWA?
  2. If the EPA has authority to permit such discharges, would it be better addressed through other federal authorities as opposed through the the NPDES permit program?
  3. Are current pollution discharges adequately addressed through existing state statutory or regulatory programs or through existing federal regulations and permit programs?
  4. Should the EPA clarify its previous statements concerning pollutant discharges through groundwater with a direct hydrologic connection to a “Waters of the U.S.?”
  5. What format or process should the EPA use to revise or clarify its previous statements if the Agency pursues further action?

EPA requests comments agreeing or disagreeing with the agency’s potential action, including any alternative or substitute language, estimated cost burdens and specific examples to demonstrate the perspective.

EPA is accepting public comments until May 21, 2018, which can be submitted by going to www.regulations.gov and entering Docket ID No. EPA-HQ-OW-2018-0063.

While NACo does not have specific policy on this issue, we will continue watching for further developments.

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