In a June 2020 QuickStudy, I wrote about the implications of the Supreme Court’s April 2020 decision in County of Maui, Hawaii v Hawaii for permitting projects that discharge pollutants to groundwater that ultimately impacts navigable waters. In that decision, the Court defined several factors to determine whether discharges to ground water were the “functional equivalent” of discharges to navigable waters and therefore required a National Pollution Discharge Elimination (“NPDES”) Permit. In that QuickStudy, I argued that whether a project required an NPDES permit could have implications for project viability. It could determine whether the United States Environmental Protection Agency (“EPA”) reviews the project permit, whether a project is a major federal action and thus subject to environmental review under the National Environmental Policy Act (“NEPA”) and whether the project must defend the permit in federal court or state court. I suggested that, absent a clarifying rule or guidance published by the EPA, courts would be forced to develop something like a common law of permitting water decisions fleshing out the seven criteria that the Court articulated in County of Maui.
The EPA did issue a draft guidance memorandum relating to the County of Maui decision, notice of which was published in the Federal Register on December 10, 2020. However, instead of clarifying the seven criteria stated by the Court in County of Maui or the application of those criteria, the EPA took seven and half pages to state three truisms and added an additional criteria not stated in the Court’s decision bringing the total number of factors to consider in determining whether a discharge to ground water is the functional equivalent of a discharge to navigable waters to eight. The truisms are that (i) the discharge must actually reach navigable waters; (ii) the discharge must originate at a point source; and (iii) only a subset of discharges to groundwater that reach navigable waters will be the “functional equivalent” of discharges to such navigable waters. While all true, the memorandum did not provide any actual guidance to either permit writers or applicants as to which discharges to groundwater must be permitted under the NPDES program. The guidance did not further explain or clarify the conditions that indicate addition of pollutants to navigable waters. Likewise, it did not state which types of sources should be considered point sources beyond the words used to define point source in the rule.
The guidance added to the criteria stated by the Court the consideration of design and performance of the system or facility from which the pollutant is released. Although relevant to some of the key criteria stated by the Court in the County of Maui decision, the memorandum did not state which factors of design performance should be considered in permit decision making nor how they would be factored with the other considerations stated by the Court. Because the period for the public to comment on the memorandum is open until January 11, 2021, it is highly unlikely that EPA will issue a final memorandum prior to the inauguration of President Elect Joe Biden on January 20, 2021. Therefore, the Biden Administration will determine whether to take action on this issue. It is almost certain that they will not finalize the memorandum as drafted nor issue a final memorandum that is based on the draft memorandum.
So what might EPA Administrator-designate Regan do in response to the County of Maui decision if confirmed? Although the Biden-Harris platform does not address this issue directly, it does offer clues for how a Biden Administration will approach water permitting for projects under the County of Maui criteria.
The Biden-Harris campaign has promised to “build back better.” Throughout their speeches, platform and in their selections of environmental policy appointees, they have emphasized federal government and environmental policy experience and expertise. Expect the EPA to develop a detailed response to the County of Maui decision that attempts to use the tools at EPA’s disposal to implement the County of Maui decision in a way that is consistent with the Administration’s emphasis on clean water, climate change, environmental justice and renewable energy development.
As an initial matter, I expect that the Biden EPA will likely rescind the Trump draft guidance. They may try to draft interim guidance but, ultimately, I expect that the Biden EPA will issue a rule regarding the process for permitting discharges to ground water under the NPDES program. I expect that this rule will address issues such as which impacts to navigable waters from groundwater discharges are sufficient to trigger NPDES permitting requirements and what types of data, including modeling and monitoring, are required to track such impacts. Such a rule will likely seek to further delineate between the authority of state governments and the federal government in permitting discharges to ground water. In addition to the criteria stated by the Court in the County of Maui decision, I expect any rule issued by a Biden EPA to seek to ensure that any prospective permit to discharge to ground water is evaluated for its eventual impact to communities of color and communities that have been disproportionately negatively affected by environmental permitting decisions on the past. Likewise, permitting will likely consider both direct and indirect climate change impacts.
Industry segments that expect to be affected by such permitting decisions and any guidance or rule developed by the Biden EPA, such as mining, energy and waste water treatment, should consider participating in the guidance or rule making development process to the greatest extent possible. Industry could argue in that process for clarity and streamlined permitting procedures while preserving flexibility to address specific circumstances. Industry could remind rule makers that industry segments such as copper and other metal mining to build wind turbines and electric motors and pipelines to transport bio fuels will be integral contributors to the Biden-Harris clean energy transition and that clear but flexible NPDES permitting programs for discharges to groundwater will be an important tool to achieving the Biden-Harris goal of zero net carbon emissions by 2050.
Detailed guidance or rulemaking will take some time, at least a year if not two or more. Therefore, prior to rule making, entities that are developing projects with discharges to groundwater should work closely with counsel to prepare a permitting strategy and for litigation once the permitting decision is made. Such entities should use any environmental evaluation process, such as the NEPA or state equivalent review, to fully understand the relationship between any expected discharges to groundwater and potential impacts to navigable waters. Counsel should use this information to develop a comprehensive permitting strategy and a clear theory of the case as to why the discharge is or is not subject to the NPDES permitting program under the criteria in the County of Maui decision.
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