On December 8, 2020, the U.S. Environmental Protection Agency (“EPA”) released a draft guidance memorandum (“Draft Guidance”) to provide guidance to the regulated community and permitting authorities, including the EPA, on applying the recent decision of the United States Supreme Court (“Court”) on County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (“Maui County”), in the Clean Water Act (“CWA”) Section 402 National Pollutant Discharge Elimination System (“NPDES”) permitting program. EPA notes that the Draft Guidance only addresses discharges of pollutants that reach waters of the United States through groundwater, the issue addressed in Maui County. EPA acknowledges that the Draft Guidance document does not have the force and effect of law and does not bind the public. But, it is intended to provide clarity to the public regarding existing requirements under law or EPA policies. EPA is soliciting public comments on the Draft Guidance memorandum for thirty (30) days. Comments may be submitted to Docket No. EPQ-HQ-OW-2020-0673.
Although Maui County confirmed that a facility might need a NPDES permit if its point source discharges passed through groundwater to reach a water of the United States, the Court did not clarify precisely when permits were required for indirect discharges. Instead, the Court concluded that a permit might be needed for an indirect discharge if the discharge is a “functional equivalent of a direct discharge.” The Court identified seven factors that could be useful in determining whether an indirect discharge was such a functional equivalent of a direct discharge, but did not provide direction on how to weight such factors (and the Court even suggested that other factors may be relevant).
EPA’s Draft Guidance first discusses the how the functional equivalent test set out by the Court applies to the basic principles that govern whether a NPDES permit is needed. EPA also identifies an additional factor that it believes should be considered when performing a functional equivalent test. That factor is the design and performance of the system or facility from which the pollutant is released.
EPA makes several important points in its discussion of the intersection of the functional equivalent test and the fundamental principles of Section 402 of the CWA. First, EPA notes that an actual discharge of a pollutant to a water of the United States is a threshold condition that must be satisfied before the need for a NPDES permit...
