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Groundwater Discharges

EPA Policy 83 Fed. Reg. 7126, Feb. 20, 2018 regulates pollutants discharged from point sources to jurisdictional surface water via groundwater or other subsurface flow that has a direct hydrologic connection to the surface water.

The policy states that NPDES permits may be issued for any release of a pollutant from a pipe, drain or any distinct and discrete point source (such as an injection well) into groundwater that reaches federally protected waterway.

The EPA requested comment through May 21, 2018 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 surface waters via groundwater or other subsurface flow. Many comments were focused on the CWA and that on its face it does not regulate pollutant discharges into, through or from groundwater into surface water, regardless of hydrologic connection, and that the policy is outside the scope of the national permitting program.

Now, the Senate Environment and Public Works Committee Chairman John Barasso (R-Wyo.) is considering a bill that would overturn EPA policy 83 Fed. Reg. 7126.

Both sides of the debate are currently focused on the The Ninth Circuit February ruling in Hawaii Wildlife Fund v. County of Maui that said the county was responsible for wastewater pollutants found in the Pacific Ocean that had traveled from underground injection wells via groundwater. Maui County has already asked for an extension to petition to the US Supreme Court.

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