Sep 232021

EPA Drops Guidance From Previous Administration Interpreting Post-Maui Clean Water Act Permitting Requirements

Samuel B. Boxerman and Joseph T. Zaleski
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The U.S. Environmental Protection Agency (EPA or Agency) Office of Water announced that it will be rescinding guidance (the “rescission memo”) prepared in the final days of the Trump administration that provided an interpretation of federal Clean Water Act permitting requirements in the wake of the Supreme Court’s significant April 2020 decision in County of Maui, Hawaii v. Hawaii Wildlife Fund.

The previous administration issued its guidance to assist the regulated community and permitting authorities with applying the Maui decision to National Pollution Discharge Elimination System permitting for point source discharges that travel through groundwater before reaching waters of the United States. EPA stated in the rescission memo that the previous administration added a new factor to the “functional equivalent” analysis identified in Maui that was not reflected in and inconsistent with the Court’s opinion — specifically, “the design and performance of the system or facility from which the pollutant is released.” Per the rescission memo, “[n]o language in the decision suggests that the existence, or lack, of a state groundwater protection program has any bearing on whether the ‘functional equivalent’ analysis applies”; the Maui decision was instead focused on “whether a permit is required to protect surface waters, not to protect groundwater itself.” EPA also stated in the rescission memo that the guidance was issued without proper deliberation within the Agency or with other federal partners.

In the interim as the Agency evaluates next steps in finally rescinding the guidance, EPA signaled that the “functional equivalent” factors the Court identified in Maui provide sufficient guidance principles for making permitting decisions under the Clean Water Act.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Joseph T. Zaleski

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