The U.S. Environmental Protection Agency announced yesterday that it would be rescinding its guidance memorandum, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit ProgramCounty of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program.”
Meant to provide technical guidance to regulators and groundwater users, the guidance memorandum, published in January, permitted authorities to apply the decision of the U.S. Supreme Court in the County of Maui V. Hawaii Wildlife Fund case as it pertains to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting program.
Urgency
In July, NGWA organized and sent a letter on behalf of 13 groundwater organizations urging the EPA to immediately rescind the guidance memorandum.
Not only did the letter state the guidance was often vague and not applicable to “real-world” scenarios it also noted that immediately rescinding the guidance would “eliminate the challenges and possible confusion that have been created recently for states that already have dischargers and are applying for permits and renewals based on the guidance memorandum.”
Because it was not drafted with proper deliberation with the EPA and federal partners, the EPA stated in yesterday’s announcement, that it is rescinding the guidance. The guidance also includes inconsistencies with the Clean Water Act and the Supreme Court decision in County of Maui V. Hawaii Wildlife Fund.
The EPA Office of Water is currently evaluating appropriate next steps to follow the rescission of the guidance.
Virtual session on policy implications
In December, NGWA will be hosting a virtual session on the policy implications of County of Maui V. Hawaii Wildlife Fund and the potential development of new technical guidance. The session will take place December 7-8 during NGWA’s 2021 virtual Groundwater Summit,
