EPA Seeks Comment On Possible Regulation Of Groundwater Discharges

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach "waters of the United States" are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain underground wastewater discharges in Hawaii required permits under the Clean Water Act.

While the Clean Water Act does not expressly give the EPA regulatory authority over groundwater, in the past these situations have generally been evaluated by the EPA on a case-by-case basis. The primary issue has centered around whether the pollutants discharged into groundwater eventually reach jurisdictional waters of the United States. The EPA has never definitively stated that CWA permits are required for pollutant discharges to groundwater, but has indicated in the past that pollutants discharged from