On December 27, 麻豆视频 commented (coalition letter) on the U.S. Environmental Protection Agency鈥檚 (EPA) on when discharges to surface waters via groundwater would require a Clean Water Act section 402 permit (National Pollutant Discharge Elimination System or NPDES). 麻豆视频鈥檚 primary concern is that the new guidance would lead EPA to consider prevalent stormwater infrastructure (such as sediment basins or retention ponds) as point sources requiring a NPDES permit. These stormwater controls are themselves often required by NPDES permits.
As previously reported, the Biden Administration rescinded earlier guidance issued in January 2021 after the U.S. Supreme Court's decision in the County of Maui, Hawaii v. Hawaii Wildlife, 2020. 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.
In addition to the conflict with stormwater infrastructure and associated risk introduced, the coalition letter also provides corrections needed in the draft guidance, summarized below.
- Conveyance by groundwater does not create Clean Water Act (CWA) regulatory authority.
- The guidance should not apply to the movement of water through the unsaturated zone; water percolation through the unsaturated zone is not a flow.
- A mere increase of a pollutant does not in itself establish functional equivalence.
- 鈥淐onstituents鈥 is not a substitute for pollutants under the CWA; unpermitted discharges of pollutants are prohibited by the Act.
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.