On November 27, 2023, EPA announced in the Federal Register that it has issued draft guidance on applying the Supreme Court decision, County of Maui v. Hawaii Wildlife Fund in the context of the NPDES permitting program and will accept comments on the draft until December 27, 2023. 88 Fed. Reg. 82891.
The draft guidance, which EPA quietly posted on its web site on November 20, 2023, includes the standard boiler plate language that it is merely guidance and not binding on any person. However, the language of the guidance quickly deviates from that qualification and instead reads like a rule. The language of the guidance also deviates from the statute and from the Supreme Court’s decision.
The guidance reads like a rule when it makes unqualified statements like the following on pages 4-5:
“The spread of pollutants from a source by groundwater movement often results in a contaminated zone referred to as a plume. If a plume has minimal dispersion before entering a water of the United States, that provides evidence that the discharge may be the functional equivalent of a direct discharge.”
“A relatively higher mass of pollutant(s) reaching a water of the United States relative to the measured or estimated mass of pollutant(s) leaving the point source would also support the finding of a functional equivalent discharge.”
“Likewise, a relatively higher concentration of pollutant(s) reaching a water of the United States relative to the measured or estimated concentration of pollutant(s) leaving the point source would support the finding of a functional equivalent discharge.”
These pronouncements suggest that measuring pollutant mass or concentration alone is sufficient to meet the Maui “functional equivalent” test. While it may be easy for EPA to implement, such an analysis has even less statutory support than the “fairly traceable” test that the justices held was inconsistent with the CWA. I doubt either EPA’s enforcement office or the Department of Justice would want to defend that position in court.
The draft guidance also includes language that suggests that the groundwater itself can be the conveyance. Of course, that position ignores the fact that groundwater is not a point source under the CWA. The litigants and the justices recognized that limitation, as I discussed in my Texas Environmental Law Journal article on Maui.
Despite this fact, the draft guidance claims that hydraulic conductivity can support a functional equivalence determination. In fact, the opposite is true. EPA simplistically notes that hydraulic conductivity is a measure of how easily water can pass through soil or rock. However, hydraulic conductivity is more precisely defined as the ratio of volume flux to hydraulic gradient. If the groundwater gradient is providing the hydraulic head that moves the contaminated plume of water, then groundwater is the conveyance, not the pollutant source, and there is no point source. Yet, the draft guidance proclaims that the spread of pollutants by groundwater movement alone, i.e., a plume, can be the functional equivalent of a direct discharge from a point source, with the only question relating to the amount of dispersion. This conclusion also is not legally correct.
Finally, the draft guidance suggests that factors included by the Supreme Court as most relevant to a functional equivalence determination, such as transit time and distance traveled, be included in a permit application for consideration of how to permit a discharge, not whether a permit is required.
There is much to comment on in the short, 30-day comment period provided by EPA.