December 19, 2020 Practice Points

EPA Issues 11th Hour Draft Guidance, Dilutes County of Maui Impact on Groundwater Permitting

The draft guidance should help clarify when a NPDES permit is necessary under the Clean Water Act.

By Elizabeth M. Weaver, H. Joseph Drapalski, and Katherine E. Fragoso

On December 8, 2020, the U.S. Environmental Protection Agency (EPA) issued draft guidance on application of the Supreme Court’s County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) decision to the National Pollutant Discharge Elimination System (NPDES) permit program. The draft guidance should help clarify when a NPDES permit is necessary under the Clean Water Act (CWA).

The EPA previously sought to exclude groundwater from CWA permitting requirements in its April 2020 “Navigable Waters Protection Rule,” finding that a release of pollutants to groundwater is not subject to the CWA’s permit requirement “even if the pollutants subsequently migrate to jurisdictional surface waters.” 33 CFR Part 328 (Apr. 21, 2020). The Supreme Court, however, was quick to dispose of the agency’s final rule in County of Maui, holding that a NPDES permit is required not only for discharges directly from point sources to waters of the United States, but also for its “functional equivalent” in groundwater that flows into regulated waters. To determine whether an indirect discharge is the “functional equivalent” of a direct discharge from a point source, the justices articulated a new, seven-factor test to be applied on a case-by-case basis. While the Court did not clarify precisely when permits were required for indirect discharges, the Court did express that the two primary factors are transit time and the distance the discharge travels.

What Can Regulated Entities Expect from the New Guidance?

The new draft guidance posits that whether a pollution discharge into groundwater should be considered a “functional equivalent” requiring a discharge permit depends on “what happens to the discharged pollutant over that time and distance traveled” to the regulated body of water. If the composition or concentration of the pollutant that ultimately reaches the water is “different” from that which was originally discharged, it “might not” be considered a functional equivalent. In addition, the EPA proposed facility performance and design as an eighth factor in the functional-equivalence analysis—a facility may be less likely to require a permit if it uses a waste-storage or water-treatment system rather than if it discharges pollutants “consistently and predictably” into groundwater.

The draft guidance sets forth a narrow interpretation of the April decision, and states that its “functional equivalence” test should not significantly affect the percentage of NPDES permits issued for point-source discharges that reach waters of the United States via groundwater.

The EPA stressed in the guidance document that the County of Maui decision does not change the existing framework for determining when a NPDES permit is required under CWA, and that there are still two threshold requirements for determining whether an NPDES permit is required: (1) There must be an actual discharge of a pollutant to “Waters of the United States” (as defined by CWA); and (2) the discharge must be from a point source. Applying the County of Maui decision to this framework, the draft guidance explains that a release of pollutants from a point source, or its functional equivalent, must actually reach jurisdictional waters to be subject to a NPDES permit.

“NPDES permits are essential tools that help protect our nation’s water resources,” said EPA Assistant Administrator for Water David Ross in a statement. “Understanding when such permits are needed is critical to the efficient administration of our Clean Water Act permitting programs.” If finalized, the guidance could help regulated entities and permitting authorities more easily determine when NPDES permits may be required for indirect discharges. However, the impact of the new guidance on the permitting program is likely short-lived as the Biden administration takes office.

Elizabeth M. Weaver is a partner, H. Joseph Drapalski is a senior associate, and Katherine E. Fragoso is an associate with Norton Rose Fulbright US LLP in Los Angeles, California.


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