Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund. As the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits.
SCOTUS outlined seven factors “that may prove relevant (depending upon the circumstances of a particular case).” Last January, Trump’s EPA issued guidance adding an eighth factor: “system design and performance.” I’ll glance over that Trump’s antipathy towards guidance lasted only until he realized how convenient guidance is to the party in power.
EPA’s news release on its withdrawal of the guidance was brief and to the point:
The addition of that factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit. The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.
I’d put it slightly differently. The Trump guidance was an awesome combination of irrelevancy and redundancy. First, the guidance seems largely irrelevant, since the design and performance of a treatment system specify what happens prior to the point source discharge, whereas the focus of the Maui analysis is on what happens between the point source discharge and the affected surface water. Secondly, to the extent the design and performance of the system are somehow relevant, those impacts would seem to be addressed by the factors identified in Maui. For example, imagine that there is a facility that will discharge to groundwater and that it would otherwise take one year to reach the surface water, but that the system is designed so that it takes two years (and perhaps that it will reduce the concentrations reaching the surface water). The time to reach surface water and the change in concentrations over the distance traveled are already factors specified in Maui. What does the separate consideration of “system design and performance” add to the analysis?
Either way, it does not appear to me that the Trump EPA guidance was an appropriate use of guidance.