Biden admin advances groundwater permitting policy

By Miranda Willson | 05/20/2024 04:23 PM EDT

The nonbinding EPA guidance responds to a Supreme Court ruling on pollution that travels through groundwater.

A groundwater recharge project designed to capture excess flow for groundwater storage.

In this aerial drone photo provided by the California Department of Water Resources, the primary pump in the foreground is part of a groundwater recharge project designed to capture excess flow for groundwater storage in Fresno County on March 13, 2023. The White House is reviewing permitting guidance for groundwater. Andrew Innerarity/California Department of Water Resources via AP

The Biden administration is moving forward with new permitting guidance to curb pollution that moves through groundwater in response to a landmark Supreme Court ruling.

In a decision praised by environmental advocates, the high court ruled in 2020 that wastewater treatment plants and industrial facilities must obtain federal permits for groundwater pollution that affects major bodies of water.

Since then, however, questions have emerged over how to interpret and apply the ruling, which said that permits are necessary if groundwater pollution has the “functional equivalent” of directly contaminating a lake, river or other surface water. The Trump administration issued its own interpretation of the ruling in January 2021, which EPA under President Joe Biden scrapped months later.


“The Supreme Court really just set out guideposts for how to define and when to regulate a ‘functional equivalent’ discharge, but it left a lot of questions unanswered,” Anna Wildeman, counsel at Troutman Pepper who worked in EPA’s water office under the Trump administration, said in an email.