On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements.  EPA did a good job marshalling its arguments – much better than this EPA has done in a number of similar situations.

I have previously noted the difficulties associated with regulating point source discharges to groundwater under the NPDES program, so I'm sympathetic to EPA's argument.  For example, Massachusetts takes the position that all groundwater eventually discharges to surface water.  That would mean that all point source discharges to groundwater are subject to NDPES permitting.  That is pretty clearly not what Congress intended.

Some courts have tried to avoid this outcome by limiting the applicability of the NPDES program to discharges to groundwater that have a “direct hydrologic connection” to surface water.  However, that approach, while logically compelling, has no basis in the text of the Clean Water Act.

Nonetheless, I'm still troubled by EPA's Interpretive Statement, which fails to come to grips with two related and totally plausible situations.

• Facility one abuts a river and discharges to the river.  It needs a permit.  Facility two is next door to facility one and has a point source discharge to groundwater 25 feet from the River.  Evidence demonstrates conclusively that essentially all of the contaminants from Facility two's discharge promptly reach the river.  Why should one facility need a permit, but not the other?

• Facility A abuts a river and has a point source discharge to the river.  It doesn't like conditions imposed in its NPDES permit renewal, so it replaces its point source discharge to the River with a point source discharge to abutting groundwater.  All the same contaminants continue to reach the River.  Can Facility A really avoid permitting in this way?

EPA ignored both of these hypotheticals.  Its position is that Congress intended that groundwater discharges should not be subject to NPDES requirements.  The implication is that, if Congress does not like the outcome of these hypotheticals, Congress can amend the Clean Water Act.

Count me among those not completely satisfied by that knowledge.