Advocacy Comments on EPA’s Draft Maui Guidance  

On November 27, 2023, the U.S. Environmental Protection Agency (EPA) published draft guidance on applying the United States Supreme Court decision in the County of Maui v. Hawaii Wildlife Fund.

Specifically, the draft guidance outlines the EPA’s jurisdiction under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) permit program for point source discharges that travel through groundwater before reaching a water in the United States.

The Office of Advocacy (Advocacy) filed comments on the draft guidance (PDF, 212 KB) on December 21, 2023. Advocacy raised multiple concerns, including:

  • The lack of clarity in the draft guidance will increase regulatory uncertainty and costs for small entities.
  • The multiple types of information necessary for an NPDES permit recommended in the draft guidance will impose substantial costs on small entities.
  • The draft guidance should be revised to allow consideration of state groundwater protection programs when determining the scope of an NPDES permit.
  • The draft guidance’s use of the functional equivalent analysis on “reasonable indicators” and “similar” pollutants exceeds the scope of the CWA.

For more information, please contact Nick Goldstein, Assistant Chief Counsel,, (202) 772-6948.