Partner Dorothy Watson was quoted in the Law360 article, “EPA’s Groundwater Guidance Leaves Permitting Murkiness,” about the U.S. Environmental Protection Agency’s recent guidance on how to comply with the U.S. Supreme Court decision earlier this year in County of Maui v Hawaii Wildlife Fund. The case dealt with Clean Water Act permits for groundwater pollution.
In a memo, the EPA said that in addition to the seven factors identified by the Supreme Court, a regulator or potentially regulated entity should look at whether the pollutant composition and concentration at the end point is different than what was initially discharged. The memo also makes a point to remind regulators and potentially regulated entities that there are other steps to go through before beginning the functional equivalency test, each of which may exempt a facility from having to consider getting a permit, Watson said.
For example, the memo said a discharge must actually enter a water of the United States, which can be a famously tricky question in and of itself. And second, it said such a discharge must be from a "point source" as defined by the Clean Water Act, which can be a point of contention as well.
All that seems to paint a picture of an EPA that's reluctant to endorse a broad view of new permitting authority — a position Biden's new administration may not be enthusiastic about, Watson said.
"It's pretty much a given that the new administration is going to want to do their own thing on Maui," she said. "There's certainly a lot of reason to believe that the Biden administration will focus on water issues at EPA, with Maui being a big one. So I expect that this will either be pulled back or supplemented in relatively short order."