New EPA Guidance Says Groundwater Discharges Do Not Require Permits

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EPA released interpretive guidance on April 16 to clarify whether groundwater pollution that eventually reaches federally regulated traditional navigable waters — e.g., seas, rivers, lakes — requires a permit under the National Pollutant Discharge Elimination System (NPDES) program. EPA stated that discharges to groundwater are not covered by the Clean Water Act (CWA): “… releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and EPA has other statutory authorities.” EPA’s position is consistent with NAHB comments submitted to the Agency last spring. Under the NPDES program, it is a violation of the CWA to discharge any “pollutant” into a jurisdictional water unless that discharge has been permitted. Currently, many developers and builders install low-impact development or green infrastructure practices as well as septic systems that are designed to infiltrate into groundwater. EPA’s interpretive statement clarifies that these individual practices that discharge to groundwater do not require NPDES permits. EPA will take comments on the guidance until June 7. U.S. Supreme Court to Weigh In The interpretive guidance comes as the U.S. Supreme Court plans to review a 2018 ruling by the Ninth Circuit Court of Appeals in Wildlife Fund v. County of Maui. The Court ruled that pollutants released into groundwater, which eventually reach CWA jurisdictional waters, must obtain federal NPDES permits. NAHB was concerned that the ruling’s expansive definition of "pollutants" could include stormwater runoff and septic systems and negatively impact the residential construction industry by requiring NPDES permits for individual stormwater practices or septic systems that are designed to infiltrate into groundwater. There are more than 26 million septic systems in the United States, and countless stormwater and green infrastructure practices that are designed to infiltrate stormwater. NAHB's earlier comments pointed out that Congress did not intend the federal CWA to apply to discharges into groundwater. As noted by EPA in the interpretive statement, Congress explicitly left the regulation of discharges to groundwater to the states. In fact, many states have laws that specifically protect groundwater. The Supreme Court is not expected to hear oral arguments in the Maui case before this fall's session, when it will also consider EPA's interpretive guidance. This means a ruling by the Supreme Court is not expected until the end of 2019 or early 2020. For more information, please contact Environmental Policy Program Manager John Kosco.

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