In a memorandum sent last week to the EPA Regions and Water Division Directors, EPA Assistant Administrator for the Office of Water Radhika Fox revoked the previous administration’s January 2021 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 (NPDES) Program.”

Citing to both substantive flaws and a lack of sufficient interagency coordination, the two-page memorandum takes the long-anticipated step of rescinding the Trump-era guidance on how to apply the landmark Maui decision, in which the Supreme Court outlined seven factors to consider when determining if indirect discharges from a point source to “waters of the United States” require NPDES coverage because they are “functionally equivalent” to direct discharges.

The now-rescinded guidance had been derided by environmental organizations as creating loopholes for dischargers to evade Clean Water Act permitting requirements, particularly its identification of system design and performance as an “eighth factor” to consider in any “functional equivalent” analysis. 

Importantly, EPA’s new memo states that considering system design and performance in a Maui analysis inappropriately “introduces an element of intent” that is not consistent with the Supreme Court’s decision.  However, NACWA had supported consideration of the design and performance of features such as green infrastructure in proactively determining whether NPDES permits are necessary, and it is unclear how the statements in EPA’s memo could impact on-the-ground permitting determinations. 

The guidance also reiterates EPA’s position that, consistent with the Maui decision, the existence of a state groundwater program that may regulate a discharge does not obviate the need for applying the Maui test to determine whether an NPDES permit is required.  Such language appears to be intended to address claims made by industry in on-going litigation that discharges subject to regulation under state groundwater programs categorically do not require NPDES coverage.   

The memo states that EPA is evaluating appropriate next steps and will for the time being make NPDES determinations on a case-by-case basis, which had long been agency practice prior to the issuance of the Maui decision.   NACWA will continue to evaluate the memorandum and will keep members apprised of any developments as they occur.  Please contact Amanda Aspatore, NACWA’s Chief Legal Counsel, with any questions.