Twelve AGs Filed Comments Criticizing EPA Guidance on Implementation of Supreme Court’s Maui Clean Water Act Decision

JANUARY 11, 2021

Maryland Attorney General Brian Frosh led a coalition of 12 attorneys general in filing comments criticizing the Environmental Protection Agency’s (EPA) draft guidance on implementation of the U.S. Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, a case centered on the applicability of Clean Water Act permitting requirements to discharges of pollutants that reach protected surface waters through groundwater conduits. In their comments, the AGs warned that the EPA’s draft guidance conflicts with the Court’s decision in Maui by adding an inappropriate factor — “the design and performance of the system or facility from which the pollutant is released” — to the equation for determining whether a facility is required to obtain a National Pollutant Discharge Elimination System (NPDES) permit. The AGs emphasized that this factor “concerns circumstances antecedent to the point of discharge” and “[b]y definition ... refers to the characteristics of the point source itself, and not to characteristics of a pollutant’s journey from the point source to navigable waters.” The AGs warned that, ultimately, this factor “would give polluters a new (yet meritless) way to argue, whether to regulators or in court, that their discharges fall outside the Clean Water Act’s prohibition on unpermitted discharges.” The AGs also warned that this factor would “give polluters an incentive to avoid regulation simply by relocating discharge pipes from navigable waters to groundwater,” which is precisely “the sort of strategic behavior that troubled the Supreme Court” in Maui.