Soon We'll Have EPA Guidance Responding to the Supreme Court's Maui Decision, but It May Not Be Much
Thursday, September 7, 2023
EPA Guidance Hawaii Wildlife Fund v. Maui. Supreme Court Case

The ever-vigilant Sam Hess of Inside EPA has posted an August presentation by an EPA official at the Association of Clean Water Administrators’ Annual Meeting.  That presentation says that EPA has drafted new guidance based on the Supreme Court's decision in Hawaii Wildlife Fund v. Maui. 

In Maui, a majority of the Supreme Court held that a discharge of a pollutant to groundwater which is the functional equivalent of a discharge to a Water of the United States is covered by the NPDES provisions of the Clean Water Act (not for nothing, but Justice Alito's opinion of the Court in Sackett v. EPA is very, very similar to his dissenting opinion in Maui). 

The Supreme Court identified seven factors to be considered in determining whether a discharge is the functional equivalent of a discharge to a Water of the United States and the District Court Judge applied those factors to find that the Maui discharge was such a functional equivalent.  

Since then, other courts have applied the Maui factors, but we haven't yet seen any EPA "administrative guidance" of the sort specifically invited by the Supreme Court in its Maui decision.

According to the presentation made to the Association of Clean Water Administrators, that is about to change with "new guidance" that "merely summarizes and reiterates what is in the Maui decision."

One might wonder why, more than three years after the Supreme Court's decision, that's the most EPA can do.  I have three reactions.

First, until we see the guidance, I'm not betting the farm that it is as uncontroversial as suggested to the Clean Water Administrators.   After all, that's how EPA characterizes its post-Sackett Waters of the United States regulation and, as I wrote last week, reasonable minds differ on that.  

Second, who can blame EPA for not doing more?  It is already going to be defending its Waters of the United States regulation, likely in more than one court.  And the Supreme Court has made quite clear, in both Maui and Sackett, that it isn't inclined to defer to EPA's judgment about what the Clean Water Act authorizes in the way of any EPA regulation.

Third, the confusion over what is and isn't the functional equivalent of a discharge of a pollutant to a Water of the United States could be cleaned up by Congress at the same time it addresses once and for all the controversy over what is and isn't a Water of the United States.  But, there's no sign that Congress will resolve the longest running controversy in environmental law any time soon.

Finally, I should note that Ms. Hess posted EPA's recent presentation because it provides a detailed report on EPA's schedule for issuing a NPDES permit that will authorize the United States Forest Service to continue fighting fires from the air with fire suppressants.  Apparently EPA plans to publish a draft permit for public comment in June of next year on the way to issuing a final permit in November of 2025.

As I wrote last spring, I can't believe that anyone truly believes that Congress intended to subject fire fighters to criminal and civil penalties for fighting fires if they didn't have a NPDES permit and, given the monumental environmental challenges we face and the limited EPA resources we have with which to face them, I'm convinced there are more important things that those involved in this EPA effort could be doing.

EPA says it expects to finalize by late 2025 a controversial Clean Water Act (CWA) pollutant discharge permit for the U.S. Forest Service’s (USFS) unpermitted aerial discharges of fire retardant into navigable waters of the United States, though lawmakers have signaled they may seek to waive such requirements in the upcoming Farm Bill. In an Aug. 9 presentation at the Association of Clean Water Administrators’ (ACWA) 2023 Annual Meeting, which recently posted on the group’s website, Maria Lopez-Carbo, associate director of the Water Permits Division in EPA’s Office of Wastewater Management, said the agency is planning to develop the proposed National Pollution Discharge Elimination System (NPDES) general permit from January 2023-May 2024, hold a public comment period from June-July 2024, with final permit revisions from August 2024-September 2025, and the final permit’s issuance in November 2025.


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