On December 12, the United States Environmental Protection Agency (EPA or the Agency) issued
draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in
County of Maui v. Hawaii Wildlife Foundation, 140 S. Ct. 1462 (2020). The guidance is intended to help both members of the regulated community and permitting authorities determine when a National Pollutant Discharge Elimination System (NPDES) permit may be required for discharges from point sources that reach navigable waters through groundwater. Comments on the draft guidance are due 30 days after its publication in the
Federal Register.
In
Maui, the Supreme Court considered whether Section 402 of the Clean Water Act required an NPDES permit for the release of pollutants from a point source that reached jurisdictional waters after traveling through groundwater. 140 S. Ct. at 1468. The Court held that an NPDES permit would be required only when a discharge from a point source that reaches jurisdictional waters through groundwater is the “functional equivalent” of a direct discharge from a point source into navigable waters.