(June 11, 2019) - NACWA and the WateReuse Association submitted comments on June 7 to the US Environmental Protection Agency (EPA) regarding the application of the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program to the release of pollutants that originate from a point source, but are conveyed to navigable waters by a nonpoint source such as groundwater [84 Fed. Reg. 16810 (Apr. 23, 2019)]. 

NACWA/WateReuse’s comments focus on the need for regulatory certainty to allow utilities to plan prudently for the expenditure and investment of public funds, while operating responsibly under the law.  The comments support EPA’s recent Interpretive Statement which concluded that “the best, if not the only, reading of the CWA is that Congress intentionally chose to exclude all releases of pollutants to groundwater from the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater.”

The comments also point out the redundancy and impracticability of applying the end-of-pipe NPDES program to pollutants that migrate through groundwater. The analysis required to issue a permit will require fact-intensive, site-specific, case-by-case determinations that will be costly and resource intensive for the regulated community and the regulators; this could impede rather than advance shared water quality goals.

Absent a bright-line exclusion, there is potential liability under the CWA for an indeterminable array of diffuse and indistinct sources including various types of environmentally beneficial infrastructure, much of which is specifically designed or intended to address other regulatory obligations.  These sources could include public water distribution and sewer collection systems, retention ponds, municipal green infrastructure projects, and water reuse projects. 

Both the Fourth and Ninth Circuit federal appeals courts have held that the CWA NPDES permit program applies to pollutants that enter jurisdictional waters via groundwater, but the courts have created different tests for determining liability.  But the Sixth Circuit and EPA, via its Interpretive Statement, have come to the opposite conclusion.

Congress intended that activities regulated under the NPDES program be clearly and readily identifiable. However, the status quo is anything but clear; the regulated community is being subjected to uncertainty, geographically disparate treatment, and exposure to citizen suit enforcement and regulation for discharges that have never required NPDES permits before.

NACWA supports a strong regulatory framework to protect water resources and is committed to protection of public health and the environment regardless of specific statutory language.  But the CWA NPDES permitting program does not contemplate, and cannot logically accommodate, the regulation of such discharges.  There are other federal and state programs that are more appropriately designed to address these circumstances. There is no regulatory gap that could justify expanding the NPDES program beyond its statutorily defined limits. 

In May, NACWA – along with Association members the City and County of San Francisco, New York City, and the Denver Metro Wastewater Reclamation District - filed a brief with the US Supreme Court in support of NACWA member Maui County, Hawaii to resolve this issue.  See additional information on the Supreme Court brief, on the circuit split, and how pollution via groundwater is more appropriately regulated via tools other than the CWA NPDES program.

Contact Amanda Waters, NACWA General Counsel, with questions.