What’s at Risk and Talking Points

The Trump EPA is considering revising the agency's previous statements that Clean Water Act permits may be required for facilities to discharge pollutants that reach rivers, streams and lakes through groundwater or other subsurface flow.  Most court decisions and EPA documents have recognized that requiring discharge permits in this situation is consistent with EPA's regulations, but some courts have said requiring such permits is not legally authorized.  This proposal lays the groundwork for a possible weakening of EPA's existing rules.

EPA's Previous Statements

The Clean Water Act (CWA) requires a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of pollutants by point sources (e.g., a pipe or ditch that conveys wastewater, for example, from a sewage treatment plant or factory)  into surface waters protected by the Act.  These surface waters are sometimes referred to as "jurisdictional waters."

Previous EPA statements in rulemaking, guidance and permitting documents have said that these CWA permitting requirements may apply to discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional waters.

Since the early 1990s there have been conflicting federal district court decisions as to whether a NPDES permit is required if a point source discharge reaches a jurisdictional surface water via a subsurface flow path instead of a pipe or other surface conveyance structure.  Most court decisions and EPA documents have recognized that requiring NPDES permits for these types of discharges is entirely consistent with CWA regulations.  (In these situations the groundwater, which transports the NPDES discharge to jurisdictional surface waters, is functioning as a conveyance structure and need not be considered "waters of the U.S." that are subject to the CWA.)  There is confusion, however because some court decisions do not support CWA regulation of point source discharges that reach a jurisdictional stream via subsurface flow.  These decisions cite the opinion that regulating these discharges under the CWA would “…extend federal regulatory authority over groundwater,” which is a state responsibility.

Trump Administration Rollback Proposal

This Federal Register notice provides background information and asks for public comment on the following: 

"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. ..."

Suggested Talking Points

1. The request for comments does not include an explanation as to which statements or documents would be revised or clarified.  Nor is there a discussion of why revisions to EPA documents should be made.
2. Court decisions against CWA regulation of these point source discharges are based on a false premise – that permitting these types of point source discharges would constitute federal regulation of groundwater quality.  For purposes of permitting these discharges under NPDES program – EPA policy could clearly state that the permit has no groundwater quality compliance requirements unless imposed by the State.  This makes clear that groundwater is just a conveyance pathway, not a federally regulated resource.
3. We are concerned that the proposal may be a backdoor way to change EPA policy and adopt a new policy that CWA authority does not apply to planned 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.  This would have serious implications relative to regulating facilities that purposely discharge to groundwater without obtaining an NPDES permit.  Such facilities can include concentrated animal feeding operations (CAFO).  These high-density operations generate large quantities of waste fluids which are often disposed of by infiltration ponds or land application.  In many hydrogeologic settings the underlying surficial aquifer has a direct hydrologic connection to a stream.
4. The science is clear that there often is a hydrologic connection between groundwaters and surface waters.  Groundwater discharge to surface water occurs in numerous hydrogeologic settings, especially in surficial, alluvial aquifers with overlying perennial streams and rivers.  These types of hydrogeologic settings are well understood and the groundwater surface water connection can be quantified and monitored.              
5. We recommend that EPA clarify the policy by clearly stating that NPDES permits are required or “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.  Permits would need to be based on site-specific hydrogeologic conditions.

There Is More That You Can Do

It would be great if well-reasoned, fact-based comments were enough to win the day, but in today's deregulatory environment, raising the political stakes of regulatory rollbacks is crucial to stopping or slowing them down.  Submitting comments is a good first step. For rules that are particularly important to you, please consider taking one or more of the following steps, too. These methods can help to mobilize public opinion and spur elected leaders to fight the destructive changes that the Trump Administration is promoting.

Write to your members of Congress and other elected officials.  Let them know your concerns and ask them to weigh in on this rollback, and speak out publicly in favor EPA’s existing statements on this issue.  These links make it easy to write your members of Congress (your representative in the House of Representatives and your two senators).  If you're willing to register with Countable, this link --  https://www.countable.us/ -- allows you to identify your members of Congress and send a message to all three at once.  Or, you can write them separately -- you can use https://whoismyrepresentative.com/ or https://www.usa.gov/elected-officials/ to find your members' email contact forms or snail mail addresses.

Let your state officials know that you are concerned about this issue.  Write to your elected leaders, get involved with local activists who are encouraging local or state action.  Voice your concern and encouragement in the media, social media, at local meetings, and at every opportunity.  In the absence of federal leadership, it is vitally important that states and local governments fill the void.

Write letters to the editor and even op-eds in your local papers.  Letters to the editor should be fairly brief.

Organize or participate in campaigns to make phone calls or write letters to members of Congress, and make phone calls to radio stations during call-in days, or take other actions to spread the word.

Inform your local officials about these issues, and ask them to make a public statement or submit comments on a proposed rollback if your jurisdiction has a stake in these issues.  Bring up these issues at town hall meetings.

Spread the word via social media.  Tag your elected officials so they know how you feel.

Join or organize demonstrations.

Talk to your friends, colleagues and neighbors and encourage them to comment and otherwise join in this effort. 

Vote.