G. Tracy Mehan III, the executive director of government affairs at the American Water Works Association sent me a letter he sent (representing AWWA) to Scott Wilson of EPA. Tracy was an EPA official - Assistant Administrator for Water, 2001-2003.
Surface water - groundwater (or 'ground water' as EPA spells it - for legal reasons) interaction rears its ugly head!
It should be noted that allowing polluted surface water to flow through a groundwater reservoir before entering a stream or other surface water body can be employed as a remediation technique. But care must be taken not to degrade the quality of the groundwater to the degree that it becomes useless to the environment and humans alike. No free lunch.
Download 20190607_AWWA_HydrologicConnectionNotice
Here is an excerpt from Tracy's letter:
June 7, 2019
Scott Wilson
Office of Wastewater Management
Water Permits Division (MC4203M)
Environmental Protection Agency
1200 Pennsylvania Ave NW
Washington, DC 20460
Re: Comments on “Interpretive statement on application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Ground Water” (EPA-HQ-OW-2019-0166).
Dear Mr. Wilson:
The American Water Works Association (AWWA) appreciates the opportunity to comment on the U.S. Environmental Protection Agency’s notice of availability titled “Interpretive statement on application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Ground Water.” AWWA’s comments expand on our May 21, 2018 comments to the previous Federal Register notice on this issue (EPA-HQ-OW-2018-0063), and are meant to assist EPA develop a path forward on this matter.
Summary of Comments
AWWA continues to hold the concerns expressed previously. EPA is not appropriately balancing environmental protection with regulatory certainty. Given the “One Water” nature of all water resources, an important balance must be reached to help protect all water resources. This proposed interpretative statement inappropriately eliminates a potentially beneficial tool that could be used to protect sources of drinking water without consideration for the impacts of this decision. Moreover, this action contravenes the basic science of hydrology and the interaction between surface waters and groundwater. AWWA recommends that EPA not finalize this interpretive statement and instead proceed to rulemaking to clarify these issues in a balanced manner informed by science and state regulatory needs. Should EPA proceed with this interpretative statement, it should take a more balanced approach that weighs the benefits of source water protection against the benefits of eased permitting and regulatory certainty.
Retain current practice
EPA should retain the current practice of allowing NPDES authorities (EPA or delegated states and tribes) to regulate discharges from point sources with a direct hydrologic connection to Waters of the United states when it is appropriate and necessary to protect source waters used to create drinking water. EPA should not eliminate this regulatory tool.
EPA could reduce regulatory burden while protecting sources of drinking water, through minor clarifications rather than substantially altering current practice.
Continued need for NPDES permitting with direct hydrologic connections
There is an important role for NPDES permitting under the direct hydrologic connection theory, as has been practiced in some states for decades. Current practice has received considerable support from EPA and a number of states under several administrations, in the federal courts, and across a number of stakeholders. The 2018 Federal Register notice included a discussion of permitting when there’s a direct hydrologic connection back to at least 1991. In recent Congressional testimony, at least 26 instances of precedent in relevant courts supporting the direct hydrologic connection methodology have been identified. Eliminating this permitting authority could allow added pollution of surface waters from which drinking water systems draw the majority of the nation’s potable water supply. Under this proposed interpretive statement, some discharges that would otherwise be regulated under NPDES could avoid permitting requirements by discharging instead into an adjacent groundwater system. In one pivotal case, the Northern District of California said:
“[I]t would hardly make sense for the CWA to encompass a polluter who discharges pollutants via a pipe running from the factory directly to the riverbank, but not a polluter who dumps the same pollutants into a man-made settling basin some distance short of the river and then allows the pollutants to seep into the river via the groundwater.”
Okay that's all from me - download the above PDF to read the entire letter.
By the way, here is another interesting tidbit involving WOTUS from :
In : Streams could 'come in and out' of WOTUS with climate change. Click here.
Enjoy!
"A person is smart. People are dumb." - Unknown (heard on)
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