On November 20th, U.S. Environmental Protection Agency (EPA) quietly issued its draft guidance for implementing the U.S. Supreme Court’s 2020 decision, County of Maui v. Hawaii Wildlife Fund, in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program to discharges through groundwater. Infamously dubbed as the EPA’s new Maui Guidance, this is the agency’s second effort to guide the execution of this decision.
The ruling put forth by the U.S. Supreme Court links the applicability of the Clean Water Act to indirect discharges through groundwater, thereby expanding the scope of the law. The EPA’s response to this has left the legal fraternity somewhat underwhelmed and has been criticized for its lack of initiative in utilizing this opportunity to further the goals of the Clean Water Act.
This new document from the EPA attempts to provide pragmatic guidelines under which discharges through groundwater that find their inevitable path to navigable waters can be regulated. Unfortunately, with no announcement or press release, this potentially important development in environmental jurisprudence has largely slipped under the radar.
The muted response from the EPA and the subsequent subdued reaction from the legal community could be attributed to the agency’s lackluster effort to clarify the situation and contribute effectively to the goals drafted under the Clean Water Act. However, the true impact of this underwhelming and somewhat sneaky approach adopted by the EPA remains to be seen in the future.
Regardless, any corporate and legal professionals engaged in or planning to engage in operations that might impact groundwater quality or result in discharges into navigable waters must pay attention to the developments arising from this document. With the potential to impact a broad spectrum of industrial operations and the ongoing litigation related to environmental issues, staying informed about these changes could mean the difference between compliance and costly legal battles.