On Tuesday, the United States Environmental Protection Agency released draft guidance on the case-by-case application of the United States Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). Formal notice of the draft guidance was published in today’s Federal Register and the draft guidance is open for public comment until January 8, 2020.
In Maui, the Court held that a discharge from a point source to surface waters through groundwater requires a National Pollutant Discharge Elimination System (NPDES) permit when the addition of pollutants to surface water is the “functional equivalent of a direct discharge.” The Court provided a non-exclusive list of seven factors to be considered by EPA or the permitting authority in determining whether a conveyance of pollutants through groundwater is the “functional equivalent of a direct discharge.”
Those seven factors are: (1) transit 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, and (7) the degree to which the pollution (at that point) has maintained its specific identity. The Court observed that the “functional equivalent” test might be refined through future cases or through agency action, such as guidance.
In the draft guidance, EPA observes that “the Maui decision did not change the overall statutory or regulatory structure of the NPDES permit program, and EPA cannot modify the NPDES program through guidance.” Rather, EPA explained, the case “identified an additional analysis that should be conducted in certain factual scenarios to determine whether an NPDES permit is required.” EPA anticipates that the issuance of NDPES permits for discharges through groundwater will continue to be relatively rare following the application of the Supreme Court’s “functional equivalent” analysis.
Synthesizing existing law and the Maui case, the draft guidance identifies three threshold conditions that must be satisfied before a NPDES permit is required. Those conditions are as follows:
1. An actual discharge of pollutants to a water of the United States
EPA reiterates that the Clean Water Act requires a permit only for actual discharges to a water of the United States. A potential discharge—or the mere presence of a point source in close proximity to a water of the United States—is not enough. “The Supreme Court’s decision in Maui did not instruct NPDES permitting authorities to assume that discharges to groundwater that occur in the vicinity of a jurisdictional water are the ‘functional equivalent’ of direct discharges to that water. Indeed, such discharges may never reach jurisdictional waters for a number of reasons, including characteristics of the pollutant itself and the nature of the subsurface aquifer and hydrogeology,” EPA explained. A facility owner or operator need not prove the absence of a discharge.
When there may be a discharge of pollutants through groundwater to waters of the United States, EPA recommends “considering whether a technical analysis would be prudent,” to consider whether an actual discharge of a pollutant is occurring and whether such a discharge is the “functional equivalent” of a direct discharge.
2. The discharge of pollutants that reaches, or will reach, a water of the United States must be from a point source
The Clean Water Act “still requires a discharge of a pollutant from a point source to a water of the United States. If the pollutant travels through groundwater first, the same point source requirement applies . . . Thus, a determination that there is or will be a point source discharge is a threshold condition that must be met before regulatory jurisdiction can be established . . .” EPA wrote.
3. Only a subset of discharges of pollutants to groundwater that ultimately reach a water of the United States are the “functional equivalent” of a direct discharge
A demonstration that pollutants have reached or will reach a water of the United States through groundwater “does not by itself trigger the requirement for an NPDES permit.” Under Maui, the permitting agency must consider “many potentially relevant factors” to determine whether the discharge is the “functional equivalent” of a direct discharge.
In addition to the seven factors identified by the Supreme Court, the EPA also identified an additional factor that should be considered -- the “design and performance of the system or facility from which the pollutant is released.” EPA observes that facility design and performance is ultimately relevant to all of seven of the factors explicitly set out in Maui.
Consistent with the Clean Water Act’s federalism underpinnings, states are primarily responsible for protecting groundwater quality. As such, it is important to note that many states already require permits or other approvals for discharges of pollutants to groundwater.
Even if the guidance is finalized before President Trump leaves office, the Biden Administration could elect to replace it with new guidance. However, EPA recently finalized a rule that imposes certain procedural requirements on adopting guidance documents. This rule may factor into the process that new EPA officials would need to follow to revise or withdraw a final guidance implementing Maui.
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