Posted on January 21, 2021 by Allan Gates
With apologies to Gladys Knight & the Pips:
It is not unusual for a lame duck administration to issue a flurry of midnight rules and administrative actions shortly before leaving office, and the Trump administration is no exception. One of the last minute actions by President Trump’s EPA is a draft guidance document signed on December 4th regarding application of the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund.
Much of the draft guidance document reviews in unexceptional terms the threshold conditions that must be satisfied before an NPDES permit is required, namely:
- There must be an actual discharge of a pollutant;
- The discharge must be from a point source; and
- The pollutant must reach a water of the United States.
The last page and a half of the draft guidance is where things get interesting.
The majority opinion in Maui identifies seven specific factors to consider in determining whether a point source discharge to groundwater that reaches navigable waters requires an NPDES permit. The last page and a half of EPA’s draft guidance adds an eighth factor to the list. The new factor is consideration of system design and performance.
According to the draft guidance document, the design and performance of a system should be viewed as something of a higher-order consideration that “can affect or inform all seven factors identified in Maui.” Thus, if a system’s design and performance slows transit time of the pollutant, increases distance the pollutant travels, promotes dilution, or otherwise affects one of the Maui opinion’s seven enumerated factors, the fact that the system is designed and performing to achieve that result apparently should weigh against requiring an NPDES permit. The draft guidance then proceeds to identify a number of specific systems that would be less likely to require an NPDES permit based on the new eighth factor:
- Septic systems, cesspools, settling ponds and similar systems designed to provide storage or treatment;
- Stormwater controls, infiltration or evaporation systems, green infrastructure, and other runoff management systems; and
- Water reuse, recycling, or groundwater recharge facilities.
The draft guidance document implicitly acknowledges that its addition of an eighth factor to the Maui opinion’s list of seven goes beyond mere interpretation of the Court’s decision. The guidance document notes, perhaps somewhat defensively, that the majority opinion in Maui expressly invites EPA to develop interpretive guidance that would illuminate application of the Court’s “functional equivalence” test. The draft guidance document then goes on to claim that the agency’s eighth factor should be given deference under National Cable & Telecomm. Ass’n v. Brand X Internet Serv. even if it is deemed inconsistent with the Court’s opinion in Maui:
Even when an agency’s interpretation of an ambiguous statutory provision differs from a court’s interpretation, an agency may take such a construction because it remains the authoritative interpreter of the statute it administers.
EPA’s explicit call for Brand X deference to the agency’s draft guidance is particularly ironic because the government’s briefs in Maui did not ask for deference to EPA’s interpretation of the statute, and they did not even cite Chevron or Brand X. Moreover, the Court in Maui summarily rejected the formal interpretive statement on discharges to groundwater that EPA issued one month before the government’s merits brief was due.
It is not clear whether the draft guidance will ever be finalized or otherwise survive the transition to the Biden administration. But if it survives, the new eighth factor is likely to be the target of a number of questions. For example, why should a system that is deliberately designed and operated in a manner that delivers pollutants to waters of the United States be given more lenient regulatory treatment than a less deliberate activity that delivers the same amount of pollutants to jurisdictional waters in an otherwise similar manner? Isn’t a system with deliberate design and identifiable performance expectations exactly the kind of operation that fits logically into the scheme of NPDES individual and general permits? And what are we to make of the list of specific systems that are to be given special consideration under the eighth factor? Is this list anything more than a last minute attempt to put a finger on the scales whenever one of the enumerated systems may come under scrutiny for adding pollutants to waters of the United States?
Against this backdrop it is fair to ask whether the draft guidance document offers the kind of assistance in applying the functional equivalence test the Maui Court invited EPA to provide.