On September 15, 2021, the Assistant Administrator for EPA’s Office of Water signed a memorandum rescinding the January 14, 2021, guidance to Clean Water Act permit writers on implementing the Supreme Court decision County of Maui v. Hawaii Wildlife Fund, et al., 140 S. Ct. 1462 (2020). This action significantly adds to the uncertainty whether owners of septic systems and operators of green infrastructure need Clean Water Act permit.
The Maui decision held that pollutants that originate from a point source but reach navigable waters after traveling through groundwater could require a Clean Water Act permit if the addition of such pollutants to navigable waters is the “functional equivalent” of a direct point source discharge. 140 S. Ct. at 1468. The Court identified seven non-exclusive factors for courts to consider when determining if something is functionally equivalent. 140 S. Ct. at 1476-77. The Maui decision also invited EPA administrative guidance on the “functional equivalent” analysis. Id. at 1477.
The January 2021 EPA administrative guidance added an eighth factor for permit writers to consider when determining whether a discharge is the “functional equivalent” of a point source discharge: system design and performance. This eighth factor implements the discussion at the Maui oral argument suggesting that well-designed septic systems would not require Clean Water Act permits. See November 6, 2019, Maui Oral Argument Transcript, at 58-60 (available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-260_d1oe.pdf). It also implements the Court’s requirement to consider function by inviting permit writers to consider whether systems like settling ponds, stormwater ponds, infiltration and evaporation systems, or other green infrastructure have a storage, treatment, or containment design and therefore are not the “functional equivalent” of a direct discharge.
While the January 2021 guidance has now disappeared from EPA’s website, it cannot be erased from the public record as EPA created a docket to receive public comment on the guidance. The notice of availability is at 86 Fed. Reg. 6,321 (January 21, 2021). The actual document is available at https://www.regulations.gov/document/EPA-HQ-OW-2020-0673-0127
Remarkably, EPA’s September 15, 2021, memorandum rescinding the January 2021 guidance purports to foreclose consideration of whether a system has a storage, treatment, or containment design, claiming that such consideration “is not consistent with the Clean Water Act or the Supreme Court decision.” See “Recission of the January 2021 Guidance Document, “Applying the Supreme Court’s County of Maui v Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program,” available at https://www.epa.gov/system/files/documents/2021-09/maui-rescission-memo_final-09.15.2021.pdf. EPA makes this claim despite the fact that the Court’s test is based on function and the Court invited consideration of additional factors that may be relevant. EPA further alleges the January 2021 guidance introduces “an element of intent” despite the fact that it does not adopt a mens rea element but instead directly implements the Maui decision by allowing consideration of function.
EPA’s press release goes even further, alleging that additional factors are invalid if they “could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit.” See Press Release, “EPA Rescinds Previous Administration’s Guidance on Clean Water Act Permit Requirements,” available at https://www.epa.gov/newsreleases/epa-rescinds-previous-administrations-guidance-clean-water-act-permit-requirements.
This new policy position should be very troubling to homeowners with septic systems and municipalities that employ green infrastructure. Apparently, EPA now believes that additional factors are only relevant if they expand the reach of the Clean Water Act, not if they lead to a conclusion that no permit is needed.