EPA Rescinds Trump Administration’s Guidance On Clean Water Act Permit Requirements

The U.S. Environmental Protection Agency (EPA) recently rescinded guidance issued by the Trump Administration related to wastewater permit requirements.

In December 2020, the Trump Administration’s EPA announced draft guidance that clarified how a Supreme Court decision should be applied under the Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit program. The guidance was intended to help clarify when a NPDES permit is necessary under the Clean Water Act, EPA said.

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 outlined 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.

On Jan. 14, 2021, the Trump Administration issued a guidance document, “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.”

In rescinding this guidance document on Sept. 15, 2021, EPA said that the previous Administration’s Maui guidance “reduced clean water protections by creating a new factor for determining if a discharge of pollution from a point source through groundwater that reaches a water of the United States is the ‘functional equivalent’ of a direct discharge to such water.” The new eighth factor asked regulators or potentially regulated entities to look at whether the pollutant composition and concentration at the endpoint is different from what was initially discharged.

The EPA said that the addition of that factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a NPDES permit. “The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund,” EPA said in a news release related to its decision.

EPA’s Office of Water is evaluating next steps. “In the interim, consistent with past practice and informed by the factors specified by the Supreme Court, EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act,” EPA said.

EPA’s review of the Maui guidance responded to an executive order, ““Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” signed by President Biden on Jan. 20, 2021.

The executive order directed EPA to review all regulations and policies undertaken by the previous administration and rescind or revise any rulemakings and policies that do not meet the policy objective outlined in the executive order.