On Tuesday, December 8, 2020, the U.S. Environmental Protection Agency (EPA) issued a Draft Guidance Memorandum attempting to place the recent Supreme Court decision in County of Maui v. Hawaii Wildlife Fund “into context within the existing NPDES permitting framework[.]” The Draft Memo identifies an additional factor above those outlined in the opinion for permitting authorities to consider when determining whether to perform a “functional equivalent” analysis.
County of Maui was decided on April 23, 2020, and determined that a discharge to groundwater from a wastewater treatment facility’s injection well could be the “functional equivalent” of a discharge to navigable waters where the wastewater’s migration from the injection well to the ocean was clearly ascertainable. The decision opened up the possibility that myriad discharges of pollutants that make their way through groundwater to navigable waters may now require a Clean Water Act permit, regardless of the nature of the source of the pollution or the intentions of the source’s owner. In creating the new “functional equivalent” standard, the Supreme Court outlined seven factors that may be relevant in determining whether a given discharge does or does not require a permit under the Clean Water Act:
- (1) [T]ransit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point)...
