EPA Publishes Notice Requesting Public Comment On Whether To Regulate Discharges To Groundwater Under The CWA

On February 20, 2018, the Environmental Protection Agency (EPA) published a notice in the Federal Register¹ requesting public comment on whether the EPA can regulate discharges to groundwater that flow to jurisdictional surface waters under the Clean Water Act (CWA). Specifically, the EPA seeks comment on whether such regulation is "consistent with the text, structure, and purposes of the CWA." It further seeks comment on whether the EPA should clarify its prior statements concerning these discharges, including defining the scope of the word "direct."

The CWA regulates discharges to navigable waters through (among other mechanisms) the National Permit Discharge Elimination System (NPDES). Dating back to the 1990s, through rulemakings, guidance documents and permits issued under the CWA, the EPA has stated that a pollutant discharged from a point source to groundwater that has a hydrologic connection to a jurisdictional surface water can constitute a regulated