EPA recently announced that it is seeking comments on how to address one of the more vexing issues involving EPA’s jurisdiction under the Clean Water Act (“CWA”): whether discharged wastewater or stormwater that passes through groundwater before reaching regulated surface waters is subject to permitting under the CWA’s National Pollutant Discharge Elimination System (“NPDES”) program. As noted in our past newsletters, this is not a new concern, and evolving court decisions do not suggest any consensus. (See the January and May, 2017 editions at http://www.williamsmullen.com/environews.) EPA has now decided to reexamine whether this groundwater “pass-through” effect may serve as a basis for NPDES permit applicability.
Under the CWA, “the discharge of any pollutant” is generally prohibited unless it is authorized by a permit or otherwise allowed by the CWA. The CWA defines “discharge of pollutants” as “any addition of any pollutant” from a point source to navigable waters, waters of the contiguous zone or the ocean. The term “navigable waters” is defined in the CWA as “waters of the United States, including the territorial seas,” which, in turn, is defined by NPDES regulations to include certain surface water features and wetlands, but not groundwater. A point source is “any discernable, confined and discrete conveyance . . . from which pollutants are or may be discharged.” Examples include a pipe, ditch, lagoon, or well, among other devices or features. Typical diffused or fractured geologic formations containing groundwater do not readily constitute a “discernable, confined and discrete conveyance.” Thus, a discharge of pollutants to groundwater before reaching jurisdictional waters would not appear to be an addition of pollutants to “waters of the United States” – at least not directly – and so would not appear to be a regulated discharge subject to NPDES permitting. However, EPA guidance opines that groundwater pass-through situations may trigger NPDES permit requirements or violations where there is a “direct hydrological connection” in the groundwater between a discharge’s point source and “waters of the United States.” (Note that state NPDES programs must be at least as stringent as EPA’s, so they generally follow EPA’s lead here.) These are fact-specific situations involving a variety of hydrogeological and evidentiary factors.
Federal courts continue to address this issue with some varied and significant recent developments. Following...
