The EPA is revoking fast-tracked guidance clarifying Trump-era Clean Water Act permitting requirements for indirect water pollution, according to an agency memorandum posted online Thursday.
The nonbinding guidance came in January, after the U.S. Supreme Court ruled in County of Maui v. Hawai’i Wildlife Fund in April 2020 that the Clean Water Act’s permitting requirements extend to indirect pollution that is the “functional equivalent” of a direct discharge.
The Environmental Protection Agency finalized the guidance just over a month after it was proposed in the final weeks of the Trump administration.
The agency is rescinding the guidance because the provision concerning the “functional equivalent” provision violates the Clean Water Act and is inconsistent with the Maui ruling, Radhika Fox, assistant EPA administrator for water, said in a memo Wednesday.
The guidance was also rescinded because it “was issued without proper deliberation within EPA or with our federal partners,” Fox said.
The EPA Office of Water is evaluating what it will do next, she said.
“In the interim, the Supreme Court’s decision provides guiding principles regarding when a discharge to groundwater is jurisdictional under the Clean Water Act,” Fox said.
The EPA’s decision was expected, but now the scope of federal jurisdiction over the agency’s dredge-and-fill and National Pollutant Discharge Elimination System permitting programs is unclear, said David Buente, a Sidley Austin LLP lawyer who represents industry clients.
“I think it was expected that the Biden administration EPA with new political leaders would want to put their own stamp on the core question of the scope of the Clean Water Act jurisdiction,” Buente said.
The American Farm Bureau Federation, which supported the Trump-era guidance, called the EPA’s move surprising.
“I thought the Maui guidance was fairly uncontroversial,” said Travis Cushman, senior counsel for public policy at the federation.
The Trump-era guidance clearly said a discharge must occur, and that reflects the language of the Clean Water Act, he said.
“What concerns me—they felt the need to rescind these statements,” Cushman said. “In the past at AFBF, we had to sue EPA twice when they tried to force farmers to get permits when there was no discharge. I’m hoping this does not signal they’re going back to the bad old days.”
Environmentalists applauded the action.
“We’re grateful the Biden EPA has restored key protections to make sure polluters don’t inject their pollution underground to avoid the Clean Water Act’s safeguards for our lakes, rivers and oceans,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “The science is clear that groundwater and surface waters are intertwined, and now the EPA can move forward with ensuring that our waters are protected as the law always envisioned.”
The court rejected the Trump administration’s argument that pollution discharges running through groundwater are exempt from the Clean Water Act’s permitting requirements.
The EPA said in its final guidance that permits likely would be needed only under very narrow circumstances if pollution reaches federal waters indirectly.
Regulators should consider both the concentration of indirect pollution and the design of the facility where it originated when deciding whether a permit is required, the document said.
“A discharge via groundwater that reaches a water of the United States in the same or nearly the same chemical composition and concentration may be more like a direct discharge to the jurisdictional water,” the final guidance says.
‘Functional Equivalent’ Test
The Supreme Court’s opinion, penned by Justice Stephen Breyer, sets out a multifactor test for determining whether indirect pollution amounts to the “functional equivalent” of a direct discharge.
The test emphasizes the time and distance it takes for pollution to move from a discrete source to a federal waterway, and lists several other factors, including the extent to which pollution is diluted or chemically changed and the amount that makes it all the way to a federal waterway.
The EPA’s draft guidance added another factor: whether a facility was actually designed to discharge pollution, or minimize it. For the latter category, “it may be less likely” that a permit is required, according to the guidance.
Some industry lawyers complained that the guidance did nothing to clarify permitting requirements in light of the Maui decision. An analysis from the law firm Locke Lord LLP, for example, said it “did not provide any actual guidance to either permit writers or applicants.”
But at least some groups welcomed the EPA’s attempt to clarify permitting requirements in Maui’s wake. A coalition of agriculture groups represented by the American Farm Bureau Federation filed comments in January saying they generally supported the EPA’s interpretation and had recommendations for bolstering it.
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