The U.S. Environmental Protection Agency (EPA) issued guidance clarifying the application of Clean Water Act (CWA or the Act) permitting requirements to groundwater. EPA’s Interpretative Statement concludes that Congress excluded releases of pollutants to groundwater from the Act’s permitting requirements and instead left regulation of those releases to the states and EPA’s other statutory authorities.
Consistent with Congress’ vision for a strong federal state partnership to protect the country’s groundwater resources, the agency’s new guidance recognizes the state’s leadership role in protecting groundwater and provides certainty to states and others who implement and enforce EPA’s federal permitting programs. EPA’s Interpretative Statement will help inform federal and state regulators with future National Pollutant Discharge Elimination System (NPDES) permitting and enforcement decisions.
States should continue to take an active role in regulating discharges to waters within their jurisdictions, as provided in state law and envisioned under the CWA. EPA will continue fulfilling its role in protecting groundwater and hydrologically connected surface waters as authorized by Congress through the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.
Recent conflicting federal court decisions and the prior lack of clear agency guidance regarding whether NPDES permits are required for releases of pollutants to groundwater has caused uncertainty regarding how the agency and states should implement and enforce the NPDES permitting program. In February 2018, EPA requested public comment on whether the agency should revise or clarify its position on the issue. At the same time, the agency also undertook a comprehensive review of prior agency statements on the matter and performed a holistic analysis of the text, structure, and legislative history of the Act. Based on this analysis and careful consideration of public input, EPA concluded 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.
In conjunction with issuing its Interpretative Statement, the agency is seeking additional public input regarding what may be needed to provide further clarity and regulatory certainty on this issue. The comment period will be open for 45 days after the Interpretative Statement is published in the Federal Register.