Releases from a Point Source to Groundwater
EPA Seeks Public Comment on Draft Guidance Regarding NPDES Permitting of Certain Discharges through Groundwater to Surface Waters
On November 20, 2023, EPA issued a draft guidance titled, Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program to Discharges through Groundwater. The draft guidance describes the decision’s functional equivalent analysis and explains the types of information that should be used to determine which discharges through groundwater may require coverage under a NPDES permit.
In County of Maui v. Hawaii Wildlife Fund, the U.S. Supreme Court held that point source discharges to a water of the United States through groundwater require a National Pollutant Discharge Elimination System (NPDES) permit if the discharge is the “functional equivalent” of a direct discharge. This guidance will assist permitting authorities, the regulated community, and other stakeholders in appropriately applying the “functional equivalent” standard in the NPDES permits program.
Comments on the Draft Guidance must be received on or before December 27, 2023. EPA is seeking public comment on a draft guidance that outlines factors that may be considered when evaluating whether discharges through groundwater may be subject to regulation under the Clean Water Act.
Submit comments as identified by Docket ID No. EPA–HQ–OW–2023–0551 (https://www.regulations.gov/docket/EPA-HQ-OW-2023-0551).
- Draft Guidance: Applying the Supreme Court’s "County of Maui v. Hawaii Wildlife Fund" Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program to Discharges through Groundwater (pdf)
- Federal Register Notice (pdf)
Supreme Court Decision