EPA Seeks Comments on Draft Guidance Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollution Discharge Elimination System Permit Program
On December 10, 2020, the U.S. Environmental Protection Agency (EPA) issued a Notice of Availability of Draft Guidance and Request for Comment on applying the recent decision of the U.S. Supreme Court in County of Maui v. Hawaii Wildlife Fund on a case-by-case basis to National Pollution Discharge Elimination System (NPDES) permits. Under Maui, systems or facilities that discharge a pollutant from a point source into ground water that reaches a water of the United States that is the functional equivalent of a direct discharge from a point source requires a NPDES permit. The proposed guidance identifies the design and performance of the system or the facility from where the pollutant is released as an additional factor to be considered by regulated entities and permitting authorities in determining whether a NPDES permit is required for the pollutant. This factor is in addition to the seven other factors identified in Maui. Written comments on the notice are due by January 11, 2021.