(January 13, 2021) – NACWA partnered with the WateReuse Association this week to file comments on EPA’s recently released draft guidance memorandum, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge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.”

According to EPA, the draft memorandum is intended to provide guidance to permitting authorities and the regulated community on the application of the U.S. Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, which established that discharges of pollutants reaching surface waters indirectly through groundwater require Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits if they are the “functional equivalent” of direct discharges into navigable waters.

NACWA and WateReuse’s comments support EPA’s efforts to provide more clarity on application of the “functional equivalence” test to the current NPDES permitting regime and stress the importance of unambiguous regulatory obligations for the clean water community. 

The comments also note that clean water agencies routinely engage in innovative water management practices, such as green infrastructure development and water reuse and recycling, which are designed to improve the environment and human health but may nevertheless result in minimal discharges of pollutants reaching surface waters.   

The draft guidance states that such practices are not likely to require NPDES permits under the “functional equivalence” test, and NACWA and WateReuse ask EPA to further clarify that these practices support the CWA’s objectives, and are in fact often designed to eliminate direct discharges into navigable waters and are therefore generally not the “functional equivalent” of them.

It is highly unlikely that EPA will finalize the draft guidance before the Biden Administration take over, and it is unclear how the new administration intends to address application of the County of Maui decision going forward.  NACWA will continue to engage on the issue with others in the clean water community and EPA, and will keep members apprised of any developments as they occur.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.