EPA Considers Permitting Discharges to Groundwater Under the Clean Water Act

Source: AGC of America Environmental Observer – March 30, 2018

AGC Seeks Input from Members on Potential Impact to Their Operations

The U.S. Environmental Protection Agency (EPA) is accepting public comment until May 21 on several topics related to the question of whether the federal government should use the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program to regulate discharges to (or through) groundwater that hydrologically connects to a “Water of the United States” (WOTUS). AGC is seeking more information from members on how this EPA action may impact contractors that own/operate stormwater infrastructure that “treats” or “stores” water runoff. This would include features that infiltrate stormwater or process water underground such as injection wells, underground tanks, surface water impoundments, retention or detention ponds, artificially constructed wetlands, treatment lagoons, or groundwater recharge and reuse systems.

EPA’s Federal Register notice points out that the courts have approached the question in varying ways. Over the years, and in varied settings, EPA has stated that such pollutant discharges may be subject to CWA requirements. But in the absence of clear and consistent nationwide requirements, the agency has made fact-specific, case-by-case determinations.

Some AGC members report that they use underground storage to allow incoming stormwater runoff to exfiltrate into underlying soils. Under current federal law, if an infiltration best management practice (BMP) is deeper than its widest surface dimension, or has a subsurface fluid distribution system, then it will likely be considered a Class V stormwater drainage well that is regulated under EPA’s Underground Injection Control (UIC) program at 40 CFR Parts 144 – 147, required by the Safe Drinking Water Act. See the AGC “Discussion DRAFT” document that summarizes the minimum federal requirements and the relevant language in EPA’s federal NPDES Construction General Permit. What EPA is wrestling with now is whether the agency should also apply the CWA NPDES permit program to discharges to groundwater where there is a direct hydrologic connection to jurisdictional water. EPA has asked for feedback on which connections are considered “direct,” recognizing the uncertainties associated with that term.

AGC Member Input NEEDED

Through public input, AGC and its members have an opportunity to inform a potential future federal regulatory action. Comments are due to EPA by May 21, 2018. Please respond to Leah Pilconis at pilconisl@agc.org by April 21.

  1. How would your company be impacted if EPA were to assert CWA jurisdiction over releases to groundwater?
  2. If EPA has the authority to subject such releases to CWA NPDES permitting, are they already addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs?

Background: Recent Ninth Circuit Decision

This EPA action stems from the U.S. Court of Appeals for the Ninth Circuit’s recent opinion in Hawaii Wildlife Fund v. County of Maui (County). The court concluded that the County’s underground injection control wells are “point sources” that “discharged” pollutants into groundwater that acted as an unconfined pathway that eventually reached the Pacific Ocean—a “navigable water” (881 F.3d 754 (9th Cir. 2018, 2/1/2018)). The wells therefore required NPDES permit coverage, per the Clean Water Act. The court based its decision on the “conduit theory” that unconfined groundwater can act as a point source if it conveys pollutants from a point source into a navigable “water of the United States” (WOTUS). Specifically, the court held that (1) the County discharged pollutants from a point source; (2) the pollutants are “fairly traceable” from the point source to a navigable water such that the discharge is the “functional equivalent” of a discharge to navigable waters; (3) the pollutant levels reaching the navigable water are more than de minimis. Read the full opinion here.

Please direct your comments and any questions to Leah Pilconis at pilconisl@agc.org or (703) 837-5332.

ICI and ACEC comment on EPA’s Draft 2017 General Permit

EPA is preparing to reissue the Construction General Permit. The general permit, issued under the Clean Water Act’s National Pollutant Discharge Elimination System, authorizes stormwater discharges from construction activities. Learn more about it from the EPA or AGC of America.

ICI partnered with ACEC Indiana to submit the following comments on behalf of the industry:

Comments regarding U.S. EPA’s Draft 2017 General Permit
Offered by:  Indiana Constructors, Inc. and American Council of Engineering Companies of Indiana
Date:  May 10, 2016

Public Accessibility (Online) of Storm Water Pollution Prevention Plan (SWPPP) Information
SWPPPs are fluid documents that are modified to accommodate changed conditions, utilities and multi-phase construction. Public access to the initial SWPPP will create issues for taxpayers, owners, designers, and contractors due to costly delays and production interference as owners/operators, designers and contractors will be forced to respond to unsolicited public oversite and scrutiny based off of initial SWPPP documents that do not reflect the current work site conditions.

Public Notice of Permit Coverage
EPA proposes a new requirement that the permittee’s sign/posting (or other public notice) of permit coverage must also include information informing the public on how to contact EPA if storm water pollution is observed in the discharge. There were 1,725 permits open during 2015 in Indiana. We recommend that the EPA remove this proposed requirement due to the potential inquiry backlog that could be generated from posting EPA’s contact information at every permitted site.

More Frequent Site Inspections
We request that EPA provide evidence that substantiates the lower inspection trigger threshold as observations in Indiana do not warrant such a significant increase in inspection frequency. Decreasing the inspection trigger threshold from .5 to .25 inches is a very significant change. For example, in review of two Indiana locations (Plainfield and Ft. Wayne) and their respective daily rainfall measurements between March 15, 2015 and November 15, 2015, the number of rainfall events over .5 inches were 28 (Plainfield) and 17 (Ft. Wayne). The rainfall events over .25 inches were 48 and 36, respectively. If the State of Indiana adopts the .25 inch threshold, contractors would be required to increase inspections by around 90%, using the example locations. To put this in terms of dollars, the cost to project owners and taxpayers, will be in the millions of dollars per year in Indiana.

Numeric Reporting Requirements vs. BMPs
It is critically important to industry that, in the final regulatory text, EPA clearly state that numeric permit requirements are not mandatory. Industry is concerned about proposed modifications to the current regulations at 40 C.F.R. § 122.34 that would delete the word “narrative” as it relates to effluent limitations, and also delete the additional explanatory text that “BMPs are generally the most appropriate form of effluent limits.” Again, we oppose these changes, which directly contradict CWA intent, fall outside the scope of the court’s remand and are improper actions for this rule-making. We request that EPA retain the above-referenced language in the final rule to make clear that effluent limitations may be in the form of non-numeric BMPs.

Construction vs. Real Estate Development Industries
The construction and real estate development industries are separate and distinct from each other; contractors cannot warrant the post-construction performance of storm water controls that others design, operate and maintain. Storm water BMPs are designed and constructed per known conditions. Future performance of properly designed and constructed BMPs and storm water controls systems can be negatively affected by post-construction modifications to on-site and off-site characteristics. Industry is increasingly concerned about scenarios that would burden the contractor with the long-term, legal liability for the performance of permanent storm water controls after the design and/or construction firm leaves the project.

Expanded and Transparent (Online) NOI Reporting
We will be interested in the ease of use of electronic reporting tools and will be motivated to provide feedback on future EPA drafts regarding this topic.

Thank you for considering our comments.

 Dan Osborn  Beth Bauer, CAE
 Director of Government Affairs  Executive Director
 Indiana Constructors, Inc.  American Council of Engineering Companies of Indiana
 One N. Capitol Ave., Ste. 1000  55 Monument Circle, Ste. 819
 Indianapolis, IN 46204  Indianapolis, IN 46204