Dianne R. Phillips is a partner in Holland & Knight's Boston office.
On Feb. 20, 2018, the U.S. Environmental Protection Agency (EPA) published a Request for Comment in the Federal Register seeking comments on a broad range of topics related to the question of whether the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) should be used to regulate discharges of pollutants to groundwater which have a direct hydrologic connection to surface water. This subject has been the topic of several previous EPA statements in connection with various NPDES rulemakings, but never the specific subject of EPA action. For example, EPA has previously addressed the issue in connection with issuance of its Effluent Limitation Guidelines for Concentrated Animal Feeding Operations, also known as CAFOs, but, as described in this most recent notice, those statements have not been conclusive nor extensive.
In addition, several courts have addressed the issue in the context of citizens suits against regulated facilities. Most recently the 9th Circuit in Hawaii Wildlife Fund et al. v. County of Maui, 881 F.3d 754 (9th Cir. 2018) concluded that purposeful wastewater discharges to injection wells were subject to Clean Water Act NPDES jurisdiction so long as the ultimate discharge of pollutants to surface water was fairly traceable to the original groundwater discharge. EPA identified a number of conflicting cases in its Request as part of its motivation in seeking comments on a variety of subjects surrounding this issue.
Specifically, EPA seeks comment on whether subjecting such releases to CWA permitting is consistent with the text, structure, and purposes of the CWA. If EPA has the authority to permit such releases, EPA seeks comment on whether those releases would be better addressed through other federal authorities as opposed to the NPDES permit program. Furthermore, EPA seeks comment on whether some or all such releases are addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs, such as, for example, state programs that implement EPA's underground injection control regulations promulgated pursuant to the Safe Drinking Water Act. EPA also seeks comment on whether it should clarify its prior statements and what form such clarification should take. Comments are due May 21, 2018 and should be filed in Docket ID No. EPA–HQ–OW–2018–0063, at http://www.regulations.gov.
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