By Kristen Hildreth

The Environmental Protection Agency (EPA) last week issued an Interpretive Statement clarifying the application of Clean Water Act (CWA) permitting requirements to groundwater, recognizing the state’s leadership role in protecting groundwater and providing certainty to states and others who implement and enforce the EPA’s federal permitting programs.

The statement asserts states are the primary regulators of discharges to groundwater within their jurisdiction, as provided in state law and envisioned under the CWA, and that the EPA will continue fulfilling its role in protecting groundwater and hydrologically connected surface waters as authorized by Congress.

In February 2018 the agency simultaneously requested public comment on whether the agency should revise or clarify its position on the issue, to which NCSL provided comments and began a review of prior agency statements on the matter and a review of the CWA.

Based on the above, the EPA concluded that Congress excluded releases of pollutants to groundwater from the CWA's federal permitting requirements, regardless of whether there is a hydrological connection between the groundwater and a water of the United States.

The Interpretive Statement comes as there have been two recent federal court decisions in the 4th and 9th U.S. Circuit Courts of Appeal, which ruled that federal permits, in addition to the already required state permits, were necessary for releases of pollutants to groundwater.

Further, in the 9th circuit case, the EPA and Department of Justice filed a brief coming to the opposite conclusion of the Interpretive Statement when they wrote, “In the United States’ view, a NPDES permit is required here because the discharges from the County of Maui’s wastewater treatment facility are from a point source (i.e., the injection wells) to waters of the United States (i.e., the Pacific Ocean).”

In February, the U.S. Supreme Court accepted an appeal of the 9th Circuit case, which should provide a final determination on permitting requirements for groundwater discharges later this year. In the meantime, the Interpretive Statement will guide states and EPA regions with future permitting and enforcement decisions in portions of the country outside of the 14 states within the jurisdiction of the 4th and 9th Circuit.

For more information, read the EPA’s fact sheet.

Kristen Hildreth is a policy specialist with NCSL's National Resources and Infrastructure Committee.

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