EPA’s CWA Groundwater Guidance Says Little, Will Likely Be Rescinded

Read the full story at JD Supra.

EPA’s recent draft guidance memorandum on applying the Supreme Court’s decision in County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020), provides little clarity for determining when a release to groundwater is the “functional equivalent” of a direct discharge such that it requires an NPDES permit. Instead, the guidance largely stresses how the Maui decision did not fundamentally change permitting under the Clean Water Act (CWA), while explaining how permit writers might consider system design and performance in assessing functional equivalence. Comments on the memo are due by January 11, 2021, but the incoming Biden administration will likely pull this guidance back as new leadership starts to redefine the agency’s priorities.

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