Environmental Protection Agency
Office of Water
Office of Wastewater Management
1200 Pennsylvania Avenue, N. W.
Washington, D.C. 20460
Re: Docket ID No. EPA-HQ-OW-2018-0063 “Clean Water Act Coverage of ‘Discharges of Pollutants’ via Direct Hydrologic Connection to Surface Water.”
Buffalo Niagara Waterkeeper (BNW) submits these comments in response to EPA’s solicitation of comments regarding the proposed revision of rules as part of implementation of the Clean Water Act (CWA), and proposed re-interpretation of previous statements by the EPA.
BNW is a community-based, not-for-profit organization that for nearly three decades has worked to protect and restore our water and surrounding ecosystems for the benefit of current and future generations. As members of the Niagara River Remedial Action Committee (RAC), Chair of the Niagara Relicensing Environmental Coalition (NREC), Co-Chair of the Greenway Ecological Standing Committee (GESC), and Coordinator of the Buffalo River Remedial Action Plan (RAP), BNW is charged with a community leadership role, ensuring that the region’s natural resources are protected for the public trust and in regard to human and ecological health and function. Therefore, our organization, and our tens of thousands of supporters, have a vested interest in the potential impact of this proposed revision.
The Great Lakes contain 84% of North America’s fresh surface water and provide drinking water to 35 million people. A major source of fresh water to the Great Lakes, the Niagara River Watershed, encompasses 903,305 acres of land and 3,193 miles of waterways that may be affected by the EPA’s proposed rule to allow pollutants to be discharged to groundwater without National Pollutant Discharge Elimination System (NPDES) permitting requirements or accountability. Prior to the Clean Water Act, our community suffered from the near death of Lake Erie, and the biological collapse of the Buffalo River. It was only because of the Clean Water Act, which established the rules and permitting program, that these water resources achieved a level of recovery.
EPA states and has long held that pollutants discharged from point sources into groundwater with a direct hydrologic connection to groundwater are subject to CWA NPDES permitting requirements. This policy is consistent with the CWA’s objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” While both EPA and case law agree that the CWA grants specific authority to EPA to permit and regulate these pollutant discharges, EPA now seeks comment as to whether these longstanding policies should be reviewed and revised.
The interaction between groundwater and surface water within watersheds is well understood and documented in the scientific literature, and it is established that pollutants which affect one affect the other. Groundwater is an important source of baseflow within a stream, meaning that groundwater is directly connected to, and contributes to a stream’s non-precipitation water levels and flow. This relationship is especially important within the hydrogeologic context of headwater streams. Headwaters or source water tributaries account for up to 80% of all stream miles within typical watersheds, and are fed in large part by springs and groundwater seep.
BNW maintains that it is unnecessary for EPA to revisit and redefine its current position that clearly states that pollutants which are discharged into, and move through groundwater to a jurisdictional water (surface water) require a NPDES permit if there is a direct hydrologic connection to the surface water. The current permitting and regulation of these point source pollutants is an important protection of freshwater habitat, ecology, and drinking water sources, and critically important to protecting the health of our community.
The Niagara River Watershed Contains 341 active NPDES permits, including 28 major facilities, 164 non-major facilities, 70 industrial stormwater permitted facilities, 14 Consolidated Animal Feeding Operations, and various other permitted POTW and Biosolids facilities. Western New York State is also home to hundreds of brownfields and contaminated sites that still contain polluted groundwater that is known to be leaching into our waterways, including the Niagara River, which is a Class AA drinking water supply for nearly 1 million people. Redefining the applicability of NPDES permitting to these sites will serve only to negatively impact regional natural resources and drinking water.
Additionally, watershed planning at the national and regional level depends on the specific understanding of groundwater-surface water interaction within the watershed. The Niagara River Habitat Conservation Strategy and the Niagara River / Lake Erie Regional Watershed Management Plan produced in partnership with local, state, and federal agencies including EPA, base management and conservation best practices partly on watershed modeling using the Active River Area (ARA) framework. The ARA framework enables watershed managers to spatially model the extent of ecologically and hydrologically active areas bordering rivers and streams, including the hydrogeologic conditions of riparian wetlands that depend on groundwater saturation. Pollutants discharged into these extensive riparian zones, including areas of groundwater hydrologically connected to surface waters, have the potential to be transported through subsurface processes, and impair habitat, disrupt ecology, and poison drinking water sources.
BNW asks EPA to continue its longstanding interpretation that the CWA NPDES permitting program expressly authorizes the regulation of point source pollution discharged into groundwater which has a direct hydrologic connection to surface waters. Revisiting this rule is both unnecessary, and unwarranted. Upholding this policy, which has been consistent over many decades, and regulating point source pollution discharges the same regardless of which medium they are discharged into, will allow for uniform application of standards across watersheds and the Great Lakes Basin, both of which span local and state political boundaries.
 Banks, E., Simmons, C., Love, A., & Shand, P. (2011). Assessing spatial and temporal connectivity between surface water and groundwater in a regional catchment: Implications for regional scale water quantity and quality. Journal of Hydrology, 404(1-2), 30-49.
 Sophocleous, M. (2002). Interactions between groundwater and surface water: The state of the science. Hydrogeology Journal, 10(2), 348-348.
 Gomi, T., Sidle, R. C., & Richardson, J. S. (2002). Understanding Processes and Downstream Linkages of Headwater Systems. BioScience, 52(10), 905.
 Hansen, W. F. (2001). Identifying stream types and management implications. Forest Ecology and Management, 143(1-3), 39-46
 Buffalo Niagara Riverkeeper. (2014). Niagara River Habitat Conservation Strategy.
 Buffalo Niagara Riverkeeper. (2017). Niagara River / Lake Erie Regional Watershed Management Plan
 The Nature Conservancy. (2008). The Active River Area: A Conservation Framework for Protecting Rivers and Streams.