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EPA/OW RIN: 2040-AG05 Publication ID: Fall 2020 
Title: ●Discharges That are Functionally Equivalent to a Direct Discharge and Thus Subject to NPDES Permitting Under Section 402 of the Clean Water Act 
Abstract:

On April 23, 2020 the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund, No. 18-260, addressing the question of whether a CWA National Pollutant Discharge Elimination System (NPDES) permit is required for releases of pollutants from a point source to a jurisdictional water through groundwater. The Court held that an NPDES permit is required when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. While the Court provided general direction on the legal standard for when a discharge that does not go directly into a navigable water is subject to NPDES permitting, it left many implementation questions unanswered. EPA is proposing an advance notice of proposed rulemaking to collect more information to determine whether a rule is needed; if so, what regulation to develop; and to solicit ideas or alternative suggestions for implementing the Maui decision.

 
Agency: Environmental Protection Agency(EPA)  Priority: Other Significant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Prerule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Other 
CFR Citation: Not Yet Determined     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: Not Yet Determined   
Legal Deadline:  None

Statement of Need:

On April 23, 2020 the Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund, No. 18-260, addressing the question of whether a CWA National Pollutant Discharge Elimination System (NPDES) permit is required for releases of pollutants from a point source to a jurisdictional water through groundwater. The Court held that an NPDES permit is required when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. While the Court provided general direction on the legal standard for when a discharge that does not go directly into a navigable water is subject to NPDES permitting, it left many implementation questions unanswered. EPA is proposing an advance notice of proposed rulemaking to collect more information to determine whether a rule is needed; if so, what regulation to develop; and to solicit ideas or alternative suggestions for implementing the Maui decision.

Summary of the Legal Basis:

The Agency will propose the ANPRM under the Clean Water Act.

Alternatives:

The Agency will analyze alternatives at the time of the proposal.

Anticipated Costs and Benefits:

The Agency will determine anticipated costs and benefits when/if a decision has been made to proceed to a proposed rulemaking.

Risks:

The Agency will analyze the risks when/if a decision has been made to proceed to a proposed rulemaking.

Timetable:
Action Date FR Cite
ANPRM  08/00/2021 
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: Undetermined 
Federalism: Undetermined 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Marcus Zobrist
Environmental Protection Agency
Office of Water
Mail Code 4203M, 1200 Pennsylvania Ave NW,
Washington, DC 20460
Phone:202 564-8311
Email: zobrist.marcus@epa.gov