(January 27, 2021) – In one of its last actions before the inauguration, the U.S. Environmental Protection Agency finalized its 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.” 

The guidance, which is intended to provide information to permitting authorities and the regulated community on the application of the Supreme Court’s “functional equivalence” test for Clean Water Act liability, remains largely unchanged from the draft version, which was released for public comment just last month.

Importantly, the final guidance maintains the language, supported by NACWA and the WateReuse Association in jointly filed comments, that stormwater controls, green infrastructure, water reuse and recycling, and groundwater recharge activities are less likely to require National Pollutant Discharge Elimination System (NPDES) coverage under the Maui test. 

Because the guidance was published in the Federal Register on January 21 and on its face does not have any legally binding effect, it is unclear what steps the Biden Administration intends to take with respect to the document.  NACWA will continue to engage on the issue with others in the clean water community and the new administration, and will keep you apprised of any developments as they occur. 

Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.