U.S. Environmental Protection Agency Assistant Administrator for Water David Ross announced to a group of water advocates April 3 on Capitol Hill that the EPA will soon announce clarification on pollutants traveling through groundwater to surface water.
Currently, groundwater is not considered a point source for surface water pollutants. However, several conflicting court cases triggered action by the EPA and U.S. Supreme Court to provide clarity.
“We are developing a very precise position, recognizing that we have conflicting case law,” Ross said. “It won't answer all questions, but it will provide some framework under which folks can operate.”
The EPA issued an information request on the topic in 2018, and a task force of NGWA members prepared comments, noting states are best suited to regulate groundwater quality. The action announced by Ross would be in response to this request, though it is unclear whether action taken would be guidance, a proposed rulemaking, or simply an explanatory statement.
The Supreme Court will hear a case this fall concerning the issue of whether discharges to groundwater can be regulated under the Clean Water Act. NGWA and the Water Systems Council have been following the case closely through the lower courts and are joining forces to prepare an amicus brief to file in the case. It will support the argument that the Clean Water Act should not regulate groundwater as a point source pollutant.
The EPA is moving quickly to set its position in advance of the Supreme Court’s hearing of the groundwater case.