(February 20, 2018) - The Environmental Protection Agency (EPA) published a Federal Register notice today requesting comments on the Agency's previous statements regarding whether point source discharges through groundwater that has a direct hydrologic connection to jurisdictional surface water may be subject to regulation under the Clean Water Act (CWA). EPA is requesting comments on whether the Agency should clarify previous statements on the issue, and if so, how this clarification should be accomplished (e.g., rulemaking or through other means).

The request appears to be a positive step, given recent litigation over the issue in multiple courts and the potential for regulatory confusion as a result.  On February 1, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a unanimous decision in Hawaii Wildlife Fund v. County of Maui,  holding that there is liability under the CWA for such discharges, so long as (1) the pollutants are discharged from a point source, (2) the pollutants are fairly traceable from the point source to a navigable water, such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis.

Three other federal appeals courts are currently considering the issue, and litigation has also been filed in federal district courts throughout the country.  There is a high likelihood that conflicting decisions will result and regulatory confusion will follow.  NACWA has been a strong advocate against application of CWA regulation to these circumstances, filing amicus briefs in Maui and two of the other pending cases.  However, EPA’s request for comments represents a recognition that this question, if left to the courts, may be open to interpretation, and that a statutory or regulatory fix is likely appropriate.  

Additional details on the Maui decision and the other ongoing litigation can be found on the Litigation Tracking page on NACWA’s website.  Comments in response to the Federal Register notice are due May 21, 2018. 

Members with questions can contact Amanda Waters, NACWA’s General Counsel.