EPA issues draft guidance clarifying wastewater permit requirements under Supreme Court decision

The U.S. Environmental Protection Agency (EPA) on Dec. 8 announced draft guidance that clarifies how a Supreme Court decision should be applied under the Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit program.

This guidance will help clarify when a NPDES permit is necessary under the Clean Water Act, EPA said.

“EPA’s guidance will address several questions that the regulated community and others have raised since the Supreme Court issued its decision earlier this year,” said EPA Assistant Administrator for Water David Ross in a statement.

In its decision, (County of Maui v. Hawaii Wildlife Fund), the Supreme Court held that a NPDES permit is required for a discharge of pollutants from a point source that reaches “waters of the United States” after traveling through groundwater if that discharge is the “functional equivalent of a direct discharge from the point source into navigable waters.”

The Maui decision also outlines seven non-exclusive factors that the regulated community and permitting authorities should consider when evaluating such a discharge from a point source, depending on the circumstances.

EPA’s draft guidance places the “functional equivalent” analysis into context within the agency’s NPDES permit program.

The draft reiterates the threshold conditions for triggering the requirement for a NPDES permit -- an actual discharge of pollutants from a point source to a water of the U.S.

The guidance also proposes that the design and performance of the system or facility from which the pollutant is released is an additional factor that should be considered.

“When finalized, this action will provide guidance to assist the regulated community and permit authorities with incorporating the Supreme Court’s direction in Maui into existing Clean Water Act NPDES permit programs and authorized state programs,” EPA said.

The draft guidance will be available for public comment for 30 days following publication in the Federal Register. However, it remains unclear whether the guidance will be finalized before President-elect Joe Biden's administration takes office Jan. 20, since it will be open for a public comment period and could easily be pulled by the incoming administration.

In 2018 APPA submitted comments in response to EPA’s notice seeking input on whether pollutants discharge from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that have a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.

At that time APPA recommended EPA conduct an expedited notice and comment rulemaking to revise its NPDES rule to add an exclusion clearly stating that the introduction of pollutants into groundwaters does not require a NPDES permit, even if groundwater subsequently transports those pollutants to navigable waters.

Additional information is available here.