EPA Issues Guidance On Maui Factors

The U.S. Environmental Protection Agency (EPA) announced release of its Draft Guidance Regarding NPDES Permitting of Certain Discharges through Groundwater to Surface Waters (Draft Guidance) on Nov. 20, 2023, notice of which was published in the Federal Register on Nov. 27, 2023. EPA is seeking public comment on a draft guidance that outlines factors that may be considered when evaluating whether discharges through groundwater may be subject to regulation under the Clean Water Act. Comments will be accepted until Dec. 27, 2023.

By way of background, on April 23, 2020, the U.S. Supreme Court finally issued its decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (Maui). Specifically, the Court resolved the long-standing question of whether discharges of pollutants to groundwater with a direct hydrologic connection to surface water are or should be regulated under the National Pollutant Discharge Elimination System (NPDES) program. The Court held