On April 23, 2020, the Supreme Court of the United States issued a groundbreaking ruling in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), holding that a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA) may be required not only for a direct discharge from a point source into navigable waters but also for a “functional equivalent” of a direct discharge. Following this decision, on December 4, 2020, the U.S. Environmental Protection Agency (EPA) issued a Draft Guidance Memorandum, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge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.”
This Draft Guidance provides insight into how EPA currently interprets and intends to apply the Supreme Court’s Maui decision. As discussed below, in addition to the seven factors that the Court listed, EPA also proposes one new factor to consider in analyzing whether an indirect discharge constitutes a “functional equivalent” of a direct discharge: the design and performance of the system or facility from which the pollutant is released. EPA has invited the public to submit comments on the Draft Guidance until January 4, 2021.
Even though the Draft Guidance attempts to reassure regulated entities that the number of NPDES permits issued for groundwater discharges after Maui would continue to be “a small percentage,” an EPA under a Biden Administration may take a different position and broadly implement the Supreme Court’s Maui decision. With Wiley’s significant CWA experience, we can help companies provide comments on the Draft Guidance and comply with the NPDES permitting regime after the Supreme Court’s Maui decision.
Background
The CWA establishes a permitting scheme that regulates the discharge of pollutants from point sources (defined as discernible, confined, and discrete conveyances, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged) into navigable waters (defined as the waters of the United States, including territorial seas and streams that are navigable in fact). The CWA does not directly regulate discharge of pollutants into groundwater; instead, Congress left the primary responsibility for regulating and protecting groundwater to the states. Regulated entities are...
