In November, the U.S. Environmental Protection Agency (EPA) quietly released on when discharges to surface waters via groundwater would require a Clean Water Act section 402 permit (National Pollutant Discharge Elimination System). Regulated entities will need to determine whether a permit is necessary before discharges occur, and EPA will act if unauthorized discharges to waters of the United States (WOTUS) are discovered. This new guidance may impact the common practices of groundwater recharge and reinfiltration.
The Biden Administration rescinded earlier guidance issued in January 2021 after the U.S. Supreme Court's decision in the County of Maui, Hawaii v. Hawaii Wildlife, 2020. Comments on the new 鈥淢aui guidance鈥 are due December 27, 2023.
In Maui, the Supreme Court laid out seven factors for permitting authorities to consider whether an addition of pollutants to groundwater is the 鈥渇unctional equivalent鈥 of a direct discharge of pollutants to a WOTUS. The Supreme Court determined 鈥渢ransit time and distance traveled鈥 to be the most important factors in most cases. The draft guidance briefly discusses how to assess whether a discharge would be considered functionally equivalent and recommended information to include in a NPDES permit application to request coverage for discharges. The guidance further states that 鈥渋ntent鈥 should not be considered, and a state鈥檚 existing groundwater protection program is irrelevant to this program.
Some construction contractors install and/or operate systems in which water is intended to filter into the ground, and ultimately into groundwater鈥攕uch as with green infrastructure and stormwater retention. The earlier 2021 guidance had provided a 鈥渄esign and performance鈥 factor that would help in these instances. However, the Biden Administration removed that factor from consideration.
Reception of the draft guidance has been mixed. Some critics say it goes too far by using language typically seen in regulatory text and by stretching terms such as 鈥減ollutant鈥 to 鈥渃onstituents of those pollutants.鈥 Another criticism is that the guidance lays out a series of potentially expensive, unclear steps to take---any one of which could trigger functional equivalence.
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.