83 FR 7126 - Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 34 (February 20, 2018)
Federal Register Volume 83, Issue 34 (February 20, 2018)
| Page Range | 7126-7128 | |
| FR Document | 2018-03407 |
[Federal Register Volume 83, Number 34 (Tuesday, February 20, 2018)] [Proposed Rules] [Pages 7126-7128] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-03407] [[Page 7126]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 122 [EPA-HQ-OW-2018-0063; FRL-9973-41-OW] Clean Water Act Coverage of ``Discharges of Pollutants'' via a Direct Hydrologic Connection to Surface Water AGENCY: Environmental Protection Agency (EPA). ACTION: Request for comment. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is requesting comment on the Agency's previous statements regarding the Clean Water Act (CWA) and whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation. EPA is requesting comment on whether the Agency should consider clarification or revision of those statements and if so, comment on how clarification or revision should be provided. DATES: Comments must be received on or before May 21, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- OW-2018-0063, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Scott Wilson, Office of Wastewater Management, Water Permits Division (MC4203M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-6087; email address: [email protected]. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for EPA? II. Background A. The Clean Water Act's National Pollutant Discharge Elimination System Program B. EPA's Previous Statements Regarding the Clean Water Act's ``Discharge of a Pollutant'' Provision Where There Is a Direct Hydrologic Connection C. Direct Hydrologic Connection III. Request for Comment I. General Information A. Does this action apply to me? Tribes, states, local governments, the regulated community, and citizens interested in federal jurisdiction over activities that may release pollutants to groundwater may wish to provide input. Entities releasing pollutants to groundwater or other subsurface flow that has a direct hydrologic connection to jurisdictional surface waters may be affected by whether and how EPA clarifies when or if direct hydrologically connected releases are subject to regulation under the CWA. Potentially affected entities include: ------------------------------------------------------------------------ Examples of potentially affected Category entities ------------------------------------------------------------------------ States, Tribes, and Territories...... State, Tribal, and Territorial water quality agencies and NPDES permitting authorities that may need to determine whether sources of pollutants should be addressed by standards or permitting actions. Federal Agencies..................... Federal agencies with projects or other activities near surface waters. Industry............................. Industries that may have releases that affect groundwater with connections to surface waters. ------------------------------------------------------------------------ This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by a potential clarification of EPA's previous statements in response to comments received on this notice. Other types of entities not listed in the table could also be affected. If you have questions regarding the effect of this action on a particular entity, please consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What should I consider as I prepare my comments for EPA? 1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments. When submitting comments, remember to:Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). Follow directions--The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. Describe any assumptions and provide any technical information and/or data that you used. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Provide specific examples to illustrate your concerns, and suggest alternatives. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. Make sure to submit your comments by the comment period deadline identified. [[Page 7127]] II. Background A. The Clean Water Act's National Pollutant Discharge Elimination System Program The CWA--initially enacted as the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500) and subsequent amendments-- establishes the basic structure in place today for regulating discharges of pollutants to the waters of the United States. In the CWA, Congress established the national objective to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' CWA Section 1251(a). Congress also expressly intended that states retain their traditional role in preventing, reducing and eliminating pollution: ``It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .'' CWA Section 1251(b). The CWA National Pollutant Discharge Elimination System (NPDES) permitting authority, whether implemented by EPA or an authorized State, is limited to regulating the discharge of pollutants from point sources to navigable waters. Congress prohibited any ``discharge of any pollutant'' to ``navigable waters'' unless it is authorized by statute, generally by a permit. CWA Sections 1311, 1342, 1344, 1362. The CWA defines ``discharge of a pollutant'' as ``any addition of any pollutant to navigable waters from any point source.'' CWA Section 1362(12)(A). Pollutant means ``dredged spoil, solid waste, incinerator, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.'' CWA Section 1362(6). The CWA defines ``navigable waters'' as ``the waters of the United States, including the territorial seas''; and a ``point source'' as ``any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.'' CWA Sections 1362(7), (14). The CWA authorizes EPA to issue NPDES permits under Section 402(a), but EPA may authorize a state to administer its own NPDES program if EPA determines that the program meets the statutory criteria. CWA Sections 1342(a), (b). When a state receives such authorization, EPA retains oversight and enforcement authorities. CWA Sections 1319, 1342(d). B. EPA's Previous Statements Regarding the Clean Water Act's ``Discharge of a Pollutant'' Provision Where There Is a Direct Hydrologic Connection EPA has previously stated that pollutants discharged from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional water may be subject to CWA permitting requirements. EPA has not stated that CWA permits are required for pollutant discharges to groundwater in all cases, but rather that pollutants discharged from point sources to jurisdictional surface waters that occur via groundwater or other subsurface flow that has a direct hydrologic connection to the surface water may require such permits. The Agency has made these statements in previous rulemaking, permitting, and guidance documents, although most of these statements were collateral to the central focus of a rulemaking or adjudication. See Final NPDES Permit Application Regulations for Storm Water Discharges, 55 FR 47,990, 47,997 (Dec. 2, 1990) (``[T]his rulemaking only addresses discharges to water of the United States, consequently discharges to ground waters are not covered by this rulemaking (unless there is a hydrological connection between the ground water and a nearby surface water body).''); 1991 Final Rule Addressing Water Quality Standards on Indian Lands, 56 FR 64,876, 64,892 (Dec 12, 1991) (``Notwithstanding the strong language in the legislative history of the Clean Water Act to the effect that the Act does not grant EPA authority to regulate pollution of groundwaters, EPA and most courts addressing the issues have recognized that . . . the Act requires NPDES permits for discharges to groundwater where there is a direct hydrological connection between groundwaters and surface waters. In these situations, the affected groundwaters are not considered `waters of the United States' but discharges to them are regulated because such discharges are effectively discharges to the directly connected surface waters.''); Final General NPDES Permit for Concentrated Animal Feeding Operations (CAFO) in Idaho ID-G-01-0000, 62 FR 20,178 (1997) (``the Clean Water Act does not give EPA the authority to regulate groundwater quality through NPDES permits. The only situation in which groundwater may be affected by the NPDES program is when a discharge of pollutants to surface waters can be proven to be via groundwater. . . . [T]he permit requirements . . . are intended to protect surface waters which are contaminated via a groundwater (subsurface) connection.''). See also Proposed NPDES Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 66 FR 2,960, 3,017 (Jan. 12, 2001) (``As a legal and factual matter, EPA has made a determination that, in general, collected or channeled pollutants conveyed to surface waters via ground water can constitute a discharge subject to the Clean Water Act. The determination of whether a particular discharge to surface waters via ground water which has a direct hydrologic connection is a discharge which is prohibited without an NPDES permit is a factual inquiry . . . .''). When taking final action on the proposed regulation of discharges from CAFOs, EPA rejected establishing nationally applicable effluent limitation requirements related to releases to groundwater with a direct hydrologic connection to jurisdictional water and recognized that ``there are scientific uncertainties and site-specific considerations with respect to regulating discharges to surface water via groundwater with a direct hydrologic connection to surface water [and] conflicting legal precedents on this issue.'' Final NPDES Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, 68 FR 7,175, 7,216 (Feb. 12, 2003). EPA stated in the preamble to the final rule, in the context of ensuring proper closure of CAFOs, that the permitting authority may impose special permit terms and conditions addressing such circumstances on a case-by-case basis as appropriate. 68 FR at 7,229. The Agency further noted that ``[n]othing in this rule shall be construed to expand, diminish, or otherwise affect the jurisdiction of the Clean Water Act over discharges to surface water via groundwater that has a direct hydrologic connection to surface water.'' Id. at 7,216-17. In CWA citizen suits against regulated entities, courts have faced the question of whether regulation under the CWA of point source discharges of pollutants includes regulation of releases to groundwater with a direct hydrologic connection to jurisdictional surface [[Page 7128]] waters. Some courts have determined that the statute does not explicitly answer this question, while others have held that the statute does not extend to releases to groundwater. Other courts have interpreted the CWA as covering not only discharges of pollutants to navigable waters, but also releases of pollutants that travel from a point source to navigable waters over the surface of the ground. E.g., Sierra Club v. Abston Constr. Co., 620 F.2d 41, 44-45 (5th Cir. 1980). As one court noted, ``the inclusion of groundwater with a hydrological connection to surface waters has troubled courts and generated a torrent of conflicting commentary.'' Potter v. ASARCO, Civ. No. S:56- cv-555, slip op. at 19 (D. Neb. Mar. 3, 1998). Certain courts have concluded that a hydrological connection between groundwater and surface waters is insufficient to justify CWA regulation. In Village of Oconomowoc Lake v. Dayton Hudson Corporation, the Seventh Circuit concluded that ``[n]either the Clean Water Act nor the EPA's definition [of waters of the United States] asserts authority over ground waters, just because these may be hydrologically connected with surface waters.'' 24 F.3d 962, 965 (7th Cir. 1994), cert. denied, 513 U.S. 930 (1994). The court cited EPA's statement in the preamble to the 1990 Final NPDES Permit Application Regulations for Storm Water Discharges noting the potential for a hydrologic connection between groundwater and jurisdictional surface water, but concluded that the reference was ``collateral'' and ``not a satisfactory substitute for focused attention in rulemaking or adjudication.'' Id. at 966. In Rice v. Harken Exploration Co., the Fifth Circuit held that ``a generalized assertion that covered surface waters will eventually be affected by remote, gradual, natural seepage from the contaminated groundwater'' was outside the scope of the Oil Pollution Act in order ``to respect Congress's decision to leave the regulation of groundwater to the States.'' 250 F.3d 264, 272 (5th Cir. 2001). In Cape Fear River Watch v. Duke Energy Progress, the district court held that ``Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow `hydrologically connected' to navigable surface waters.'' 25 F. Supp. 3d 798, 810 (E.D.N.C. 2014). A number of other district courts have taken the view that Congress intended to regulate the release of pollutants that reach waters of the United States, whether the pollutants reach the surface water directly, or through groundwater with a direct hydrologic connection. E.g., Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1179-80 (D. Idaho 2001). Because these courts interpreted the term ``discharge of a pollutant'' to cover discharges that reach jurisdictional water over the ground and through other means, they concluded that exempting discharges through groundwater could lead to confusion and unintended results. One court noted that ``it would hardly make sense for the CWA to encompass a polluter who discharges pollutants via a pipe running from the factory directly to the riverbank, but not a polluter who dumps the same pollutants into a man-made settling basin some distance short of the river and then allows the pollutants to seep into the river via the groundwater.'' N. Cal. River Watch v. Mercer Fraser Co., No. 04-4620, 2005 WL 2122052, at *2 (N.D. Cal. Sept. 1, 2005). And the Ninth Circuit recently held that a point source discharge to groundwater of ``more than [a] de minimis'' amount of pollutants that is ``fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into a navigable water'' is regulated under the Act. Haw. Wildlife Fund v. Cty. of Maui, No. 15-17447, slip. op. at 19 (9th Cir. Feb. 1, 2018). C. Direct Hydrologic Connection In addition to the mixed case law on whether certain releases of pollutants to groundwater are within the jurisdictional reach of the CWA, ascertaining whether there is a direct hydrologic connection such that a particular release to groundwater could be considered a ``discharge of a pollutant'' to a ``water of the United States'' and therefore subject to the CWA has been characterized previously by EPA as a fact-specific determination. See 66 FR at 3,017. EPA has stated that relevant evidence includes the time it takes for a pollutant to move to surface waters, the distance it travels, and its traceability to the point source. Id. These factors are affected by other site specific factors, such as geology, flow, and slope. Id. III. Request for Comment EPA is requesting comment from tribes, states, members of the public, and other interested stakeholders regarding whether EPA should review and potentially revise its previous statements concerning the applicability of the CWA NPDES permit program to pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to a jurisdictional surface water. Specifically, EPA seeks comment on whether subjecting such releases to CWA permitting is consistent with the text, structure, and purposes of the CWA. If EPA has the authority to permit such releases, EPA seeks comment on whether those releases would be better addressed through other federal authorities as opposed to the NPDES permit program. Furthermore, EPA seeks comment on whether some or all such releases are addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs, such as, for example, state programs that implement EPA's underground injection control regulations promulgated pursuant to the Safe Drinking Water Act. EPA also seeks comment on whether EPA should clarify its previous statements concerning pollutant discharges to groundwater with a direct hydrologic connection to jurisdictional water in order to provide additional certainty for the public and the regulated community. Such a clarification could address the applicability of the CWA to groundwater with a direct hydrologic connection to jurisdictional water, or could define what activities would be regulated if not a discharge to a jurisdictional surface water (i.e., placement on the land), or which connections are considered ``direct'' in order to reduce regulatory uncertainties associated with that term. EPA also seeks suggestions on what issues should be considered if further clarification is undertaken, including, for example, the consequences of asserting CWA jurisdiction over certain releases to groundwater or determining that no such jurisdiction exists. Finally, EPA seeks comment on what format or process EPA should use to revise or clarify its previous statements (e.g., through memoranda, guidance, or in the form of rulemaking) if the Agency pursues further action in response to this request for comment. Dated: February 12, 2018. David P. Ross, Assistant Administrator, Office of Water. [FR Doc. 2018-03407 Filed 2-16-18; 8:45 am] BILLING CODE 6560-50-P
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ENVIRONMENTAL PROTECTION ADDRESSES: Submit your comments, Washington, DC 20460; telephone
AGENCY identified by Docket ID No. EPA–HQ– number: (202) 564–6087; email address:
OW–2018–0063, at http:// wilson.js@epa.gov.
40 CFR Part 122 www.regulations.gov. Follow the online
SUPPLEMENTARY INFORMATION:
instructions for submitting comments.
I. General Information
[EPA–HQ–OW–2018–0063; FRL–9973–41– Once submitted, comments cannot be A. Does this action apply to me?
OW] edited or removed from Regulations.gov. B. What should I consider as I prepare my
EPA may publish any comment received comments for EPA?
Clean Water Act Coverage of to its public docket. Do not submit II. Background
‘‘Discharges of Pollutants’’ via a Direct electronically any information you A. The Clean Water Act’s National
Hydrologic Connection to Surface consider to be Confidential Business Pollutant Discharge Elimination System
Water Information (CBI) or other information Program
whose disclosure is restricted by statute. B. EPA’s Previous Statements Regarding
AGENCY: Environmental Protection Multimedia submissions (audio, video, the Clean Water Act’s ‘‘Discharge of a
Agency (EPA). Pollutant’’ Provision Where There Is a
etc.) must be accompanied by a written
Direct Hydrologic Connection
ACTION: Request for comment. comment. The written comment is C. Direct Hydrologic Connection
considered the official comment and III. Request for Comment
SUMMARY: The Environmental Protection should include discussion of all points
Agency (EPA) is requesting comment on you wish to make. EPA will generally I. General Information
the Agency’s previous statements not consider comments or comment A. Does this action apply to me?
regarding the Clean Water Act (CWA) contents located outside of the primary
and whether pollutant discharges from submission (i.e., on the web, cloud, or Tribes, states, local governments, the
point sources that reach jurisdictional other file sharing system). For regulated community, and citizens
surface waters via groundwater or other additional submission methods, the full interested in federal jurisdiction over
subsurface flow that has a direct EPA public comment policy, activities that may release pollutants to
hydrologic connection to the information about CBI or multimedia groundwater may wish to provide input.
jurisdictional surface water may be submissions, and general guidance on Entities releasing pollutants to
subject to CWA regulation. EPA is making effective comments, please visit groundwater or other subsurface flow
requesting comment on whether the http://www2.epa.gov/dockets/ that has a direct hydrologic connection
Agency should consider clarification or commenting-epa-dockets. to jurisdictional surface waters may be
revision of those statements and if so, FOR FURTHER INFORMATION CONTACT: affected by whether and how EPA
comment on how clarification or Scott Wilson, Office of Wastewater clarifies when or if direct hydrologically
revision should be provided. Management, Water Permits Division connected releases are subject to
DATES: Comments must be received on (MC4203M), Environmental Protection regulation under the CWA. Potentially
or before May 21, 2018. Agency, 1200 Pennsylvania Ave. NW, affected entities include:
Category Examples of potentially affected entities
States, Tribes, and Territories ..................................... State, Tribal, and Territorial water quality agencies and NPDES permitting authorities that
may need to determine whether sources of pollutants should be addressed by stand-
ards or permitting actions.
Federal Agencies ......................................................... Federal agencies with projects or other activities near surface waters.
Industry ........................................................................ Industries that may have releases that affect groundwater with connections to surface
waters.
This table is not intended to be disk or CD–ROM as CBI and then Code of Federal Regulations (CFR) part
exhaustive, but rather provides a guide identify electronically within the disk or or section number.
for readers regarding entities likely to be CD–ROM the specific information that • Explain why you agree or disagree;
affected by a potential clarification of is claimed as CBI). In addition to one suggest alternatives and substitute
EPA’s previous statements in response complete version of the comment that language for your requested changes.
to comments received on this notice. includes information claimed as CBI, a
Other types of entities not listed in the copy of the comment that does not • Describe any assumptions and
table could also be affected. If you have contain the information claimed as CBI provide any technical information and/
questions regarding the effect of this must be submitted for inclusion in the or data that you used.
action on a particular entity, please public docket. Information so marked • If you estimate potential costs or
consult the person listed in the will not be disclosed except in burdens, explain how you arrived at
preceding FOR FURTHER INFORMATION accordance with procedures set forth in your estimate in sufficient detail to
CONTACT section. 40 CFR part 2. allow for it to be reproduced.
2. Tips for Preparing Your Comments. • Provide specific examples to
B. What should I consider as I prepare
When submitting comments, remember
sradovich on DSK3GMQ082PROD with PROPOSALS
my comments for EPA? illustrate your concerns, and suggest
to: alternatives.
1. Submitting CBI. Do not submit this • Identify the rulemaking by docket
information to EPA through number and other identifying • Explain your views as clearly as
www.regulations.gov or email. Clearly information (subject heading, Federal possible, avoiding the use of profanity
mark the part or all of the information Register date and page number). or personal threats.
that you claim to be CBI. For CBI • Follow directions—The agency may • Make sure to submit your
information in a disk or CD–ROM that ask you to respond to specific questions comments by the comment period
you mail to EPA, mark the outside of the or organize comments by referencing a deadline identified.
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II. Background administer its own NPDES program if authority to regulate groundwater
EPA determines that the program meets quality through NPDES permits. The
A. The Clean Water Act’s National
the statutory criteria. CWA Sections only situation in which groundwater
Pollutant Discharge Elimination System
1342(a), (b). When a state receives such may be affected by the NPDES program
Program
authorization, EPA retains oversight and is when a discharge of pollutants to
The CWA—initially enacted as the enforcement authorities. CWA Sections surface waters can be proven to be via
Federal Water Pollution Control Act 1319, 1342(d). groundwater. . . . [T]he permit
Amendments of 1972 (Pub. L. 92–500) requirements . . . are intended to
and subsequent amendments— B. EPA’s Previous Statements Regarding
protect surface waters which are
establishes the basic structure in place the Clean Water Act’s ‘‘Discharge of a
contaminated via a groundwater
today for regulating discharges of Pollutant’’ Provision Where There Is a
(subsurface) connection.’’). See also
pollutants to the waters of the United Direct Hydrologic Connection
Proposed NPDES Permit Regulation and
States. In the CWA, Congress EPA has previously stated that Effluent Limitations Guidelines and
established the national objective to pollutants discharged from point Standards for Concentrated Animal
‘‘restore and maintain the chemical, sources that reach jurisdictional surface Feeding Operations (CAFOs), 66 FR
physical, and biological integrity of the waters via groundwater or other 2,960, 3,017 (Jan. 12, 2001) (‘‘As a legal
Nation’s waters.’’ CWA Section 1251(a). subsurface flow that has a direct and factual matter, EPA has made a
Congress also expressly intended that hydrologic connection to the determination that, in general, collected
states retain their traditional role in jurisdictional water may be subject to or channeled pollutants conveyed to
preventing, reducing and eliminating CWA permitting requirements. EPA has surface waters via ground water can
pollution: ‘‘It is the policy of the not stated that CWA permits are constitute a discharge subject to the
Congress to recognize, preserve, and required for pollutant discharges to Clean Water Act. The determination of
protect the primary responsibilities and groundwater in all cases, but rather that whether a particular discharge to
rights of States to prevent, reduce, and pollutants discharged from point surface waters via ground water which
eliminate pollution, to plan the sources to jurisdictional surface waters has a direct hydrologic connection is a
development and use (including that occur via groundwater or other discharge which is prohibited without
restoration, preservation, and subsurface flow that has a direct an NPDES permit is a factual inquiry
enhancement) of land and water hydrologic connection to the surface . . . .’’).
resources . . . .’’ CWA Section 1251(b). water may require such permits. The When taking final action on the
The CWA National Pollutant Agency has made these statements in proposed regulation of discharges from
Discharge Elimination System (NPDES) previous rulemaking, permitting, and CAFOs, EPA rejected establishing
permitting authority, whether guidance documents, although most of nationally applicable effluent limitation
implemented by EPA or an authorized these statements were collateral to the requirements related to releases to
State, is limited to regulating the central focus of a rulemaking or groundwater with a direct hydrologic
discharge of pollutants from point adjudication. See Final NPDES Permit connection to jurisdictional water and
sources to navigable waters. Congress Application Regulations for Storm recognized that ‘‘there are scientific
prohibited any ‘‘discharge of any Water Discharges, 55 FR 47,990, 47,997 uncertainties and site-specific
pollutant’’ to ‘‘navigable waters’’ unless (Dec. 2, 1990) (‘‘[T]his rulemaking only considerations with respect to
it is authorized by statute, generally by addresses discharges to water of the regulating discharges to surface water
a permit. CWA Sections 1311, 1342, United States, consequently discharges via groundwater with a direct
1344, 1362. The CWA defines to ground waters are not covered by this hydrologic connection to surface water
‘‘discharge of a pollutant’’ as ‘‘any rulemaking (unless there is a [and] conflicting legal precedents on
addition of any pollutant to navigable hydrological connection between the this issue.’’ Final NPDES Permit
waters from any point source.’’ CWA ground water and a nearby surface water Regulation and Effluent Limitation
Section 1362(12)(A). Pollutant means body).’’); 1991 Final Rule Addressing Guidelines and Standards for
‘‘dredged spoil, solid waste, incinerator, Water Quality Standards on Indian Concentrated Animal Feeding
sewage, garbage, sewage sludge, Lands, 56 FR 64,876, 64,892 (Dec 12, Operations, 68 FR 7,175, 7,216 (Feb. 12,
munitions, chemical wastes, biological 1991) (‘‘Notwithstanding the strong 2003). EPA stated in the preamble to the
materials, radioactive materials, heat, language in the legislative history of the final rule, in the context of ensuring
wrecked or discarded equipment, rock, Clean Water Act to the effect that the proper closure of CAFOs, that the
sand, cellar dirt and industrial, Act does not grant EPA authority to permitting authority may impose special
municipal, and agricultural waste regulate pollution of groundwaters, EPA permit terms and conditions addressing
discharged into water.’’ CWA Section and most courts addressing the issues such circumstances on a case-by-case
1362(6). The CWA defines ‘‘navigable have recognized that . . . the Act basis as appropriate. 68 FR at 7,229. The
waters’’ as ‘‘the waters of the United requires NPDES permits for discharges Agency further noted that ‘‘[n]othing in
States, including the territorial seas’’; to groundwater where there is a direct this rule shall be construed to expand,
and a ‘‘point source’’ as ‘‘any hydrological connection between diminish, or otherwise affect the
discernible, confined and discrete groundwaters and surface waters. In jurisdiction of the Clean Water Act over
conveyance, including but not limited these situations, the affected discharges to surface water via
to any pipe, ditch, channel, tunnel, groundwaters are not considered ‘waters groundwater that has a direct hydrologic
conduit, well, discrete fissure, of the United States’ but discharges to connection to surface water.’’ Id. at
sradovich on DSK3GMQ082PROD with PROPOSALS
container, rolling stock, concentrated them are regulated because such 7,216–17.
animal feeding operation, or vessel or discharges are effectively discharges to In CWA citizen suits against regulated
other floating craft, from which the directly connected surface waters.’’); entities, courts have faced the question
pollutants are or may be discharged.’’ Final General NPDES Permit for of whether regulation under the CWA of
CWA Sections 1362(7), (14). Concentrated Animal Feeding point source discharges of pollutants
The CWA authorizes EPA to issue Operations (CAFO) in Idaho ID–G–01– includes regulation of releases to
NPDES permits under Section 402(a), 0000, 62 FR 20,178 (1997) (‘‘the Clean groundwater with a direct hydrologic
but EPA may authorize a state to Water Act does not give EPA the connection to jurisdictional surface
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waters. Some courts have determined water directly, or through groundwater connection to a jurisdictional surface
that the statute does not explicitly with a direct hydrologic connection. water. Specifically, EPA seeks comment
answer this question, while others have E.g., Idaho Rural Council v. Bosma, 143 on whether subjecting such releases to
held that the statute does not extend to F. Supp. 2d 1169, 1179–80 (D. Idaho CWA permitting is consistent with the
releases to groundwater. Other courts 2001). Because these courts interpreted text, structure, and purposes of the
have interpreted the CWA as covering the term ‘‘discharge of a pollutant’’ to CWA. If EPA has the authority to permit
not only discharges of pollutants to cover discharges that reach such releases, EPA seeks comment on
navigable waters, but also releases of jurisdictional water over the ground and whether those releases would be better
pollutants that travel from a point through other means, they concluded addressed through other federal
source to navigable waters over the that exempting discharges through
authorities as opposed to the NPDES
surface of the ground. E.g., Sierra Club groundwater could lead to confusion
permit program. Furthermore, EPA
v. Abston Constr. Co., 620 F.2d 41, 44– and unintended results. One court noted
45 (5th Cir. 1980). As one court noted, that ‘‘it would hardly make sense for the seeks comment on whether some or all
‘‘the inclusion of groundwater with a CWA to encompass a polluter who such releases are addressed adequately
hydrological connection to surface discharges pollutants via a pipe running through existing state statutory or
waters has troubled courts and from the factory directly to the regulatory programs or through other
generated a torrent of conflicting riverbank, but not a polluter who dumps existing federal regulations and permit
commentary.’’ Potter v. ASARCO, Civ. the same pollutants into a man-made programs, such as, for example, state
No. S:56–cv–555, slip op. at 19 (D. Neb. settling basin some distance short of the programs that implement EPA’s
Mar. 3, 1998). river and then allows the pollutants to underground injection control
Certain courts have concluded that a seep into the river via the groundwater.’’ regulations promulgated pursuant to the
hydrological connection between N. Cal. River Watch v. Mercer Fraser Safe Drinking Water Act.
groundwater and surface waters is Co., No. 04–4620, 2005 WL 2122052, at EPA also seeks comment on whether
insufficient to justify CWA regulation. *2 (N.D. Cal. Sept. 1, 2005). And the EPA should clarify its previous
In Village of Oconomowoc Lake v. Ninth Circuit recently held that a point statements concerning pollutant
Dayton Hudson Corporation, the source discharge to groundwater of
Seventh Circuit concluded that discharges to groundwater with a direct
‘‘more than [a] de minimis’’ amount of
‘‘[n]either the Clean Water Act nor the pollutants that is ‘‘fairly traceable from hydrologic connection to jurisdictional
EPA’s definition [of waters of the United the point source . . . such that the water in order to provide additional
States] asserts authority over ground discharge is the functional equivalent of certainty for the public and the
waters, just because these may be a discharge into a navigable water’’ is regulated community. Such a
hydrologically connected with surface regulated under the Act. Haw. Wildlife clarification could address the
waters.’’ 24 F.3d 962, 965 (7th Cir. Fund v. Cty. of Maui, No. 15–17447, applicability of the CWA to
1994), cert. denied, 513 U.S. 930 (1994). slip. op. at 19 (9th Cir. Feb. 1, 2018). groundwater with a direct hydrologic
The court cited EPA’s statement in the connection to jurisdictional water, or
preamble to the 1990 Final NPDES C. Direct Hydrologic Connection
could define what activities would be
Permit Application Regulations for In addition to the mixed case law on regulated if not a discharge to a
Storm Water Discharges noting the whether certain releases of pollutants to jurisdictional surface water (i.e.,
potential for a hydrologic connection groundwater are within the placement on the land), or which
between groundwater and jurisdictional jurisdictional reach of the CWA, connections are considered ‘‘direct’’ in
surface water, but concluded that the ascertaining whether there is a direct order to reduce regulatory uncertainties
reference was ‘‘collateral’’ and ‘‘not a hydrologic connection such that a associated with that term. EPA also
satisfactory substitute for focused particular release to groundwater could
seeks suggestions on what issues should
attention in rulemaking or be considered a ‘‘discharge of a
be considered if further clarification is
adjudication.’’ Id. at 966. In Rice v. pollutant’’ to a ‘‘water of the United
States’’ and therefore subject to the undertaken, including, for example, the
Harken Exploration Co., the Fifth
CWA has been characterized previously consequences of asserting CWA
Circuit held that ‘‘a generalized
assertion that covered surface waters by EPA as a fact-specific determination. jurisdiction over certain releases to
will eventually be affected by remote, See 66 FR at 3,017. EPA has stated that groundwater or determining that no
gradual, natural seepage from the relevant evidence includes the time it such jurisdiction exists. Finally, EPA
contaminated groundwater’’ was outside takes for a pollutant to move to surface seeks comment on what format or
the scope of the Oil Pollution Act in waters, the distance it travels, and its process EPA should use to revise or
order ‘‘to respect Congress’s decision to traceability to the point source. Id. clarify its previous statements (e.g.,
leave the regulation of groundwater to These factors are affected by other site through memoranda, guidance, or in the
the States.’’ 250 F.3d 264, 272 (5th Cir. specific factors, such as geology, flow, form of rulemaking) if the Agency
2001). In Cape Fear River Watch v. Duke and slope. Id. pursues further action in response to
Energy Progress, the district court held this request for comment.
III. Request for Comment
that ‘‘Congress did not intend for the Dated: February 12, 2018.
CWA to extend federal regulatory EPA is requesting comment from
authority over groundwater, regardless tribes, states, members of the public, David P. Ross,
of whether that groundwater is and other interested stakeholders Assistant Administrator, Office of Water.
sradovich on DSK3GMQ082PROD with PROPOSALS
eventually or somehow ‘hydrologically regarding whether EPA should review [FR Doc. 2018–03407 Filed 2–16–18; 8:45 am]
connected’ to navigable surface waters.’’ and potentially revise its previous BILLING CODE 6560–50–P
25 F. Supp. 3d 798, 810 (E.D.N.C. 2014). statements concerning the applicability
A number of other district courts have of the CWA NPDES permit program to
taken the view that Congress intended pollutant discharges from point sources
to regulate the release of pollutants that that reach jurisdictional surface waters
reach waters of the United States, via groundwater or other subsurface
whether the pollutants reach the surface flow that has a direct hydrologic
VerDate Sep<11>2014 16:10 Feb 16, 2018 Jkt 244001 PO 00000 Frm 00012 Fmt 4702 Sfmt 9990 E:\FR\FM\20FEP1.SGM 20FEP1](https://thefederalregister.org/doc/83_FR_7160/page/3.svg)
Document Created: 2018-02-17 02:29:50
Document Modified: 2018-02-17 02:29:50
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Request for comment. | |
| Dates | Comments must be received on or before May 21, 2018. | |
| Contact | Scott Wilson, Office of Wastewater Management, Water Permits Division (MC4203M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone | |
| FR Citation | 83 FR 7126 |
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