The U.S. Environmental Protection Agency announced on September 16 it is rescinding its guidance memorandum, “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.”
The guidance memorandum, which was published in January, was meant to provide technical guidance to regulators and groundwater users and permitting authorities on applying the decision of the U.S. Supreme Court in the County of Maui v. Hawaii Wildlife Fund case as it pertains to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting program.
NGWA organized and sent a letter on behalf of 13 groundwater organizations in July urging the EPA to immediately rescind the guidance memorandum.
In the letter, as in previous comments to the EPA, NGWA stated the guidance was often vague and not applicable to “real-world” scenarios. NGWA also noted that immediate rescinding of the guidance would “eliminate the challenges and possible confusion created now for states that already have dischargers applying for permits and renewals based on the guidance memorandum.”
In the announcement, the EPA stated it is rescinding the guidance because it was not drafted with proper deliberation with the EPA and federal partners and also includes inconsistencies with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.
The EPA Office of Water is currently evaluating appropriate next steps to follow the rescission of the guidance.
NGWA is hosting a session on the policy implications of County of Maui v. Hawaii Wildlife Fund and the potential development of new technical guidance during its 2021 virtual Groundwater Summit, December 7-8.