Download PDF
My law firm colleague Jordan Wimpy undertook a presentation at the October 4th Arkansas Environmental Federation Annual Conference titled:
Does a Discharge to Groundwater Require an NPDES Permit? (“Presentation”)
Jordan’s Presentation discussed the federal developing judicial case law addressing whether, and to what extent, a discharge of pollutants into groundwater can potentially trigger Clean Water Act National Pollution Discharge Elimination System (“NPDES”) permitting requirements.
A Clean Water Act NPDES permit must be acquired if five jurisdictional elements are present:
- A person
- adds a
- pollutant
- to navigable waters
- from a point source
The absence of any one of these jurisdictional definitions eliminates Clean Water Act NPDES permitting requirements.
The scope of the term “waters of the United States” from a Clean Water Act standpoint has been the subject of debate, regulatory activity, litigation, and confusion for many years. Its importance is magnified by the fact that it is also relevant to non-NPDES programs such as:
- Section 404 of the Clean Water Act Wetland Permits
- Section 311 Oil/Hazardous Substance Release Requirements
- Clean Water Act Spill Prevention Control and Countermeasure Regulations
As a result, whether, and to what extent, a discharge of pollutants into groundwater can potentially encompass this term is a significant issue.
Jordan’s Presentation first reviewed the key jurisdictional terms, including certain exemptions from the permitting scheme.
The specific question he then addressed was:
Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby...
