Clean Water Current

The U.S. Environmental Protection Agency has been seeking input from various stakeholders on whether to rescind and replace the guidance put out at the end of the previous administration on how to apply the test articulated by the U.S. Supreme Court in County of Maui v. Hawaii Wildlife Fund.

In that decision, the Court laid out seven factors relevant to determining when discharges reaching navigable waters through groundwater are the “functional equivalent” of point source discharges requiring Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits.

While the guidance document does not provide a great amount of detail concerning the application of the factors listed by the Court as relevant to determining which discharges fall under the purview of the NPDES program, NACWA did jointly file comments with the WateReuse Association supporting the guidance’s assertion that innovative water management practices including green infrastructure and water reuse and recycling generally do not result in “functionally equivalent” discharges requiring NPDES coverage. 

EPA recently invited NACWA to participate on a call with other municipal stakeholders to discuss whether EPA should keep the current guidance, rescind it, or replace it with new guidance. NACWA took the opportunity to reiterate the need for EPA in whatever course it pursues to provide additional clarity to permit writers and the regulated community that clean water practices such as green infrastructure and water reuse generally do not require NPDES permits under the Maui test. 

EPA indicated that it would continue its meetings with other agricultural, industry, and environmental stakeholders in the coming weeks before making a determination on what to do about the guidance.

Separately, the U.S. Court of Appeals for the Seventh Circuit has been the first appellate court after issuance of the Maui decision to consider application of the Supreme Court’s test. Before the court was a challenge from environmental groups seeking NPDES coverage of seepage from coal ash impoundments into nearby waterways. 

However, while in a footnote the court acknowledged the importance of judicial application of the Maui test to the regulated community at large, the court determined that the environmental organizations in failing to expressly name any members that would be directly impacted by the discharges had failed to establish that they had standing to bring their claims. As such, rather than address the merits of the Maui arguments, the Seventh Circuit dismissed the case for lack of standing. The plaintiffs will have to file the case anew at the lower court if they wish to pursue their claims. 

We will continue to keep you updated on any judicial or administrative developments concerning application of the Maui test. Please contact NACWA’s Chief Legal Counsel Amanda Aspatore with any questions.