By Jeryl L. Olson and Andrew H. Perellis

Seyfarth Synopsis: USEPA published an Interpretive Statement (dated April 12, 2019), which according to the Agency “clarifies” that releases of pollutants to groundwater from a point source are “categorically excluded” from Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting requirements. 

According to the Agency, the exclusion applies regardless of whether the groundwater is hydrologically connected to surface waters. The Interpretative Statement has been widely published; it appears on the USEPA website, in a pre-publication version of the Federal Register Notice, in the actual Interpretive Statement, and in a “Fact Sheet.”

While on its face the Interpretive Statement sounds definitive, it is anything but.

First, states are primarily responsible for discharges to groundwater, and EPA’s Interpretive Statement may not apply in some states; according to USEPA, it is therefore is intended to “guide” states and EPA regions with respect to NPDES permitting of discharges to groundwater.

Second, the Interpretive Statement only applies outside of the Fourth Circuit (i.e., Eastern states including Maryland, West Virginia, Virginia, North Carolina, and South Carolina), and outside the Ninth Circuit (i.e., Western states including Washington, Montana, Oregon, Idaho, Nevada, California and Arizona).  That is, EPA’s Interpretive Statement that point source discharges to groundwater are to be excluded from NPDES permitting requirements,  do not apply in the Fourth or Ninth Circuits.

Third, the Interpretive Statement limits itself as follows:  “… it neither alters legal rights or obligations nor changes or creates law.” 

Finally, although the Interpretive Statement applies to  Clean Water Act NPDES permitting requirements for discharges to groundwater, USEPA has indicated will continue to protect groundwater and hydrologically connected surface waters through the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Compensation and Liability Act.

In short, while on its face the Interpretive Statement appears to resolve the issue of NPDES permitting for discharges to groundwater, its utility may be somewhat limited, and USEPA is soliciting public input as to whether further clarity and regulatory certainly is necessary with respect to this issue. While it has practical limitations, the Statement does analyze myriad prior Agency statements addressing the issue, and analyzes, as seen above, the split in the federal circuit courts regarding NPDES permitting for releases of pollutants to groundwater that reach jurisdictional surface waters.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.