The U.S. Environmental Protection Agency (EPA) recently issued a draft guidance just before the Thanksgiving holiday. The draft pertains to the when a discharge of a “pollutant” to groundwater is, in essence, nearly identical to a discharge to a Water of the United States, therefore it would require a NPDES permit under the Clean Water Act.
The draft guidance has stirred up quite a debate, as it is perceived to be causing additional confusion rather than providing clear guidance on the reach of the Clean Water Act. What it seems to accomplish is largely a restatement of the prior directives, eliciting doubts about whether it will bring about any significant clarity or aid to the law professionals navigating this tricky legislation.
This move drew attention, especially since an official from the EPA had previously promised the Association of Clean Water Administrators that the draft guidance would “merely summarize and reiterate what is in the Maui decision”. This statement seems to suggest that the purpose of this guidance was just to outline the existing decision rather than truly providing a detailed guideline or clarifying any ambiguity surrounding the decision.
This provides a good reminder for legal professionals working around environmental laws and regulations to be watchful not just of the new laws being passed, but also the interpretation and guidance documents as they can sometimes complicate the implementation of the law rather than simplifying it.
For more details on this issue, refer to this article.