The EPA is repealing fast-track guidelines clarifying the Trump-era Clean Water Act requirements for indirect water pollution, according to a memorandum from the agency posted online Thursday.
The non-binding guidelines came in January, after the U.S. Supreme Court ruled in Maui County v. Hawai’i Wildlife Fund in April 2020 that the Clean Water Act permit requirements extend to indirect pollution which is the “functional equivalent” of a direct discharge.
The Environmental Protection Agency finalized the guidance just over a month after their proposal in the final weeks of the Trump administration.
The agency is rescinding the guidelines because the “functional equivalent” provision violates the Clean Water Act and is inconsistent with the Maui ruling, Radhika Fox, EPA’s deputy water administrator, said Wednesday.
The guidelines were also rescinded because they “were released without proper deliberation within the EPA or with our federal partners,” Fox said.
The EPA’s Office of Water is evaluating what it will do next, she said.
“In the meantime, the Supreme Court ruling 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 dredging and infill permit programs and the agency’s National Pollutant Release System is unclear, said David Buente, a lawyer with Sidley Austin LLP who represents clients in the industry.
“I think the Biden administration’s EPA with new political leaders was expected to want to put their own stamp on the central issue of the scope of jurisdiction of the Clean Water Act,” said Buente.
The American Farm Bureau Federation, which supported the directions of the Trump era, called the EPA’s decision surprising.
“I thought the Maui guidelines were fairly uncontroversial,” said Travis Cushman, senior public policy attorney at the federation.
The guidelines of the Trump era made it clear that a rejection must occur, and that reflects the language of the Clean Water Act, he said.
“What worries me, they felt the need to rescind these statements,” Cushman said. “In the past at AFBF we had to sue the EPA twice when they tried to force farmers to get permits when there was no landfill. Hope that doesn’t mean they’re going back to the bad old days.
Environmentalists applauded the action.
“We are grateful to Biden’s EPA for restoring key protections to ensure polluters do not inject their pollution underground to bypass Clean Water Act guarantees for our lakes, rivers and oceans,” said Brett Hartl, director of government affairs at the Center for Biodiversity. “The science is clear that groundwater and surface water are intertwined, and now the EPA can move forward in ensuring that our waters are protected as the law has always envisioned. “
The court rejected the Trump administration’s argument that pollution discharges that flow into groundwater are exempt from the Clean Water Act permit requirements.
The EPA said in its final guidelines that permits would likely only be needed in very limited circumstances if the pollution indirectly reaches federal waters.
Regulators should consider both the concentration of indirect pollution and the design of the facility from which it originates when deciding whether a permit is required, the document said.
“A discharge via groundwater that reaches US water in the same or nearly the same chemical composition and the same concentration may look more like a direct discharge to jurisdictional water,” the final guide states.
“Functional equivalent” test
The Supreme Court opinion, authored by Justice Stephen Breyer, establishes a multifactorial test to determine whether indirect pollution is the “functional equivalent” of direct discharge.
The test emphasizes the time and distance it takes for pollution to travel from a discrete source to a federal waterway, and lists several other factors, including the extent to which the pollution is diluted or chemically altered and the amount that makes it up to a federal waterway.
The EPA’s draft guidance added another factor: whether a facility was actually designed to discharge or minimize pollution. For the latter category, “it may be less likely” that a permit is required, according to the guidelines.
Some industry attorneys have complained that the guidelines do nothing to clarify licensing requirements in light of the Maui decision. An analysis by law firm Locke Lord LLP, for example, said it “has not provided any real guidance for authorizing writers or applicants.”
But at least some groups have welcomed the EPA’s attempt to clarify licensing requirements in Maui’s wake. A coalition of farm groups represented by the American Farm Bureau Federation filed comments in January saying they generally supported the EPA’s interpretation and had recommendations to strengthen it.