Withdrawal expands “functional equivalent” test for discharges that the Supreme Court established in County of Maui v. Hawaii Wildlife Fund

The U.S. Environmental Protection Agency has rescinded January 2020 guidance on how to apply the U.S. Supreme Court’s April 2020 decision in County of Maui v. Hawaii Wildlife Fund. The withdrawal, which EPA announced yesterday, will likely expand the number of discharges to groundwater that EPA finds are the “functional equivalent of a direct discharge from a point source into navigable waters” and therefore require a Clean Water Act (CWA) permit.

In the Maui case, the Supreme Court held that a discharge of pollutants to groundwater will be subject to the CWA’s permitting requirements if it is the “functional equivalent” of a direct discharge to surface waters. The Court cited several factors for determining whether a discharge will qualify:

• Distance travelled to a surface water
• Time that a pollutant takes to travel to the surface water
• Extent to which the pollutant is diluted or chemically changed as it travels
• Amount of pollutant entering the surface water relative to the amount of the pollutant discharged into groundwater
• Manner by or area in which the pollutant enters the surface water
• Degree to which the pollutant has maintained its specific identity when it reaches the surface water

The EPA issued guidance interpreting the case during the waning days of the Trump administration, and added a new factor: “the design and performance of the system or facility from which the pollutant is released.” EPA decided that facilities were less likely to be the “functional equivalent” of a discharge if they were designed to store, treat or contain polluted water, manage stormwater, use green infrastructure for infiltration evaporation, recycle water or recharge groundwater.

One of President Biden’s first actions upon taking office on January 20, 2021, was issuing Executive Order 13990, directing EPA to review all regulations and policies issued by the Trump administration, and to rescind or revise any that “do not protect public health and the environment.” EPA conducted a review of the Maui guidance pursuant to this direction.

EPA stated that it rescinded the guidance because it “reduced clean water protections,” introduced an element of intent that EPA now believes is inconsistent with the Maui decision, and did not follow “proper deliberation” within EPA or with other federal agencies. EPA stated that it is “evaluating appropriate next steps to follow the rescission,” and in the interim will use Maui’s guiding principles when determining whether a discharge to groundwater will require a permit.

Because the guidance was fairly limited in the first place—mostly just restating the criteria from the Court’s decision—the effect of EPA’s action will likely be limited, with one exception. The EPA guidance arguably gave some dischargers a defense against allegations that they violated the CWA if their infrastructure was not designed to discharge to surface waters, or to circumvent CWA protections by discharging to groundwater.

One example would be wastewater collection systems that leak through groundwater to surface water. If the system was generally maintained, but some leaks still occurred, EPA’s guidance implied that the discharge may not be considered a “functional equivalent.” With the rescission of the guidance, EPA’s endorsement of that position is now gone.

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