EPA Proposes Clean Water Act Changes Regarding Discharges Via Groundwater Connecting to Surface Water

March 1, 2018

The Environmental Protection Agency is requesting comment on its previous statements regarding the Clean Water Act (CWA) and whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater, or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water, may be subject to CWA regulation.  EPA is requesting input on whether it should clarify or revise those statements and, if so, how it should provide that clarification or revision. Comments must be received on or before May 21, 2018.

Recent court rulings provide reason for immediate concern.  Environmental special interest groups have long advocated for an interpretation of the CWA that imposes CWA liability for groundwater.  Some federal courts appear increasingly willing to adopt that interpretation holding that the CWA governs discharges into groundwater that may be hydrologically connected to jurisdictional waters of the United States.  These rulings expose state and local governments, the regulated community, and industry to potentially limitless new claims and lawsuits filed under the CWA’s citizen-suit provisions.  EPA is accepting comments as it considers how to respond to these recent federal court cases.

States, local governments, the regulated community and industry interested in federal jurisdiction over activities that may release pollutants to groundwater may wish to provide input. Entities releasing pollutants to groundwater, or other subsurface flow with a direct hydrologic connection to jurisdictional surface waters, may be affected by whether and how EPA clarifies when or if direct hydrologically connected releases are subject to regulation under the CWA.