On December 8, 2020, U.S. EPA announced issuance of draft guidance to clarify its view of how the U.S. Supreme Court’s recent County of Maui v. Hawaii Wildlife Fund decision should be applied to its Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting program. In the County of Maui decision, the U.S. Supreme Court held that an NPDES permit is required for a discharge of pollutants from a point source that reaches waters of the United States after traveling through groundwater if that discharge is the “functional equivalent of a direct discharge from the point source into navigable waters.” See here for Bricker’s full analysis of the County of Maui decision.
The draft guidance is intended to clarify when an NDPES permit is necessary in light of the functional equivalent test that the U.S. Supreme Court laid out. However, the lasting impact of the draft guidance is questionable in light of the anticipated new leadership at U.S. EPA under the Biden administration.
Following its publication in the Federal Register, the draft guidance will be available for public comment for 30 days.