View Rule

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.

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.