On September 28, 2021, the Environmental Protection Agency published a notice in the Federal Register that the Agency issued a memorandum (“Memorandum”) rescinding its previous guidance entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund decision in the Clean Water Act Section 402 National Pollutant Discharge System Elimination Permit Program” (“Guidance”).  86 Fed. Reg. 53,653.

EPA States that Trump-Era Guidance Is Inconsistent with the County of Maui Decision

According to EPA, it is withdrawing the Guidance for two reasons.  First, the Guidance improperly includes an eighth factor in the “functional equivalent” analysis described as “the design and performance of the system or facility from which the pollutant is released” that is not consistent with the Clean Water Act or the County of Maui decision.  Second, EPA states that the Guidance was implemented without proper deliberation internally or with federal partners.

State Groundwater Protection Programs Have No Bearing on “Functional Equivalent” Analysis

In the Memorandum, EPA also states that the County of Maui decision provides sufficient guidance for determining whether a discharge to groundwater is jurisdictional under the Clean Water Act.  The Agency further clarifies that the existence of a state groundwater protection program has no bearing on whether the “functional equivalent” analysis applies because the focus of the County of Maui decision is on whether a permit is required to protect surface waters, not groundwater itself.  Accordingly, NPDES permitting authorities are to apply site-specific, science-based evaluations using the County of Maui factors in deciding whether a discharge from a point source through groundwater that reaches jurisdictional surface water is the “functional equivalent” of a direct discharge and therefore requires a NPDES permit.

A copy of the Memorandum is available here.

If you have any questions about the impact of rescinding the Guidance or the application of the County of Maui decision, please contact insights@goodstewardlegal.com.

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