The U.S. Environmental Protection Agency (EPA) recently announced that it is rescinding a guidance document entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” that was issued by the Trump administration on January 14, 2021.
“Using the tools provided by the Clean Water Act, EPA is committed to ensuring that all communities across America have clean and safe water,” said EPA Assistant Administrator for Water Radhika Fox. “Under President Biden’s Executive Order, EPA reviewed the last Administration’s Maui guidance and found that it was inconsistent with EPA’s authority to limit pollution discharges to our waters.”
The previous administration’s Maui guidance reduced clean water protections by creating a new factor for determining if a discharge of pollution from a point source through groundwater that reaches a water of the United States is the “functional equivalent” of a direct discharge to such water. The addition of that factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit. The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.
The Clean Water Act and a straightforward application of the U.S. Supreme Court’s decision provide important protections for the nation’s waters by ensuring that discharges of pollutants to groundwater that reach surface waters are appropriately regulated. This action will help protect water quality in lakes, streams, wetlands, and other waterbodies. EPA will work with state permitting agencies and the regulated community to implement the Supreme Court’s decision in County of Maui, consistent with law and science.
The Office of Water is evaluating appropriate next steps. In the interim, consistent with past practice and informed by the factors specified by the Supreme Court, EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act. The agency is committed to working with its state co-regulators, Tribes, and local partners to better protect water quality that is essential to public health and thriving ecosystems.
For more information visit: https://www.epa.gov/npdes/releases-point-source-groundwater.
Background
On January 20, 2021, President Biden signed Executive Order 13990, “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” This Executive Order directed EPA to review all regulations and policies undertaken by the previous administration and rescind or revise any that do not protect public health and the environment. Accordingly, EPA conducted a review of the Maui guidance.
In April 2020, the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund, addressing the question of whether a Clean Water Act NPDES permit is required for releases of pollutants from a point source to a jurisdictional water through groundwater. 140 S.Ct. 1462 (2020). The Court held that an NPDES permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Following the Court’s decision, in January 2021, EPA issued a guidance document explaining how to apply the Court’s decision in the NPDES program.
