[Federal Register Volume 83, Number 34 (Tuesday, February 20, 2018)]
[Proposed Rules]
[Pages 7126-7128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03407]



[[Page 7126]]

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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.

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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]
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