ENVIRONMENTAL ISSUES

摘要

On January 14, 2021, the U.S. Environmental Protection Agency (EPA) issued a guidance memorandum on applying the U.S. Supreme Court's County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), decision under the Clean Water Act's (CWA) section 402 National Pollutant Discharge Elimination System (NPDES) permit program. See 86 Fed. Reg. 6321 (Jan. 21, 2021). The full guidance memorandum is available at ments/final_ow_mauLguidance_document_-_signed_1.14.21. pdf. The purpose of the guidance memorandum is to clarify when an NPDES permit is necessary under the CWA for point source discharges that travel through groundwater before reaching a water of the United States. See 86 Fed. Reg. 6321. In its decision in Maui, the Supreme Court held that an NPDES permit is required for a discharge of pollutants from a point source that reaches "waters of the United States" after traveling through groundwater if that discharge is the "functional equivalent of a direct discharge from the point source into navigable waters." 140 S. Ct. at 1477. The decision also outlines seven non-exclusive factors to consider when evaluating whether a discharge of a pollutant from a point source that travels through groundwater to a water of the United States is a point source. Id. at 1476-77. A full summary of the Maui decision is available in Vol. XXXVII, No. 2 (2020) of this Newsletter.