麻豆视频 Seeks Input from Members on Potential Impact to Their Operations
The U.S. Environmental Protection Agency (EPA) is until May 21 on several topics related to the question of whether the federal government should use the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program to regulate discharges to (or through) groundwater that hydrologically connects to a 鈥淲ater of the United States鈥 (WOTUS). 麻豆视频 is seeking more information from members on how this EPA action may impact contractors that own/operate stormwater infrastructure that 鈥渢reats鈥 or 鈥渟tores鈥 water runoff. This would include features that infiltrate stormwater or process water underground such as injection wells, underground tanks, surface water impoundments, retention or detention ponds, artificially constructed wetlands, treatment lagoons, or groundwater recharge and reuse systems.
贰笔础鈥檚 points out that the courts have approached the question in varying ways. Over the years, and in varied settings, EPA has stated that such pollutant discharges may be subject to CWA requirements. But in the absence of clear and consistent nationwide requirements, the agency has made fact-specific, case-by-case determinations.
Some 麻豆视频 members report that they use underground storage to allow incoming stormwater runoff to exfiltrate into underlying soils. Under current federal law, if an infiltration best management practice (BMP) is deeper than its widest surface dimension, or has a subsurface fluid distribution system, then it will likely be considered a Class V stormwater drainage well that is regulated under 贰笔础鈥檚 Underground Injection Control (UIC) program at 40 CFR Parts 144 鈥 147, required by the Safe Drinking Water Act. See the attached 麻豆视频 鈥淒iscussion DRAFT鈥 document that summarizes the minimum federal requirements and the relevant language in 贰笔础鈥檚 federal NPDES Construction General Permit. What EPA is wrestling with now is whether the agency should also apply the CWA NPDES permit program to discharges to groundwater where there is a direct hydrologic connection to jurisdictional water. EPA has asked for feedback on which connections are considered 鈥渄irect,鈥 recognizing the uncertainties associated with that term.
麻豆视频 Member Input NEEDED
Through public input, 麻豆视频 and its members have an opportunity to inform a potential future federal regulatory action. Comments are due to EPA by May 21, 2018. Please respond to Leah Pilconis at pilconisl@agc.org by April 21.
- How would your company be impacted if EPA were to assert CWA jurisdiction over releases to groundwater?
- If EPA has the authority to subject such releases to CWA NPDES permitting, are they already addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs?
Background: Recent Ninth Circuit Decision
This EPA action stems from the U.S. Court of Appeals for the Ninth Circuit鈥檚 recent opinion in Hawaii Wildlife Fund v. County of Maui (County). The court concluded that the County鈥檚 underground injection control wells are 鈥減oint sources鈥 that 鈥渄ischarged鈥 pollutants into groundwater that acted as an unconfined pathway that eventually reached the Pacific Ocean鈥攁 鈥渘avigable water鈥 (881 F.3d 754 (9th Cir. 2018, 2/1/2018)). The wells therefore required NPDES permit coverage, per the Clean Water Act. The court based its decision on the 鈥渃onduit theory鈥 that unconfined groundwater can act as a point source if it conveys pollutants from a point source into a navigable 鈥渨ater of the United States鈥 (WOTUS). Specifically, the court held that (1) the County discharged pollutants from a point source; (2) the pollutants are 鈥渇airly traceable鈥 from the point source to a navigable water such that the discharge is the 鈥渇unctional equivalent鈥 of a discharge to navigable waters; (3) the pollutant levels reaching the navigable water are more than de minimis. Read the full opinion 鈥 .
Please direct your comments and any questions to Leah Pilconis at pilconisl@agc.org or (703) 837-5332.