The Maui Decision seems destined to be just a footnote in environmental regulatory history. It was just over a year ago that we started to roll the language of the Maui Decision into our lexicon. Most notably, the term “functional equivalent” (See “Clean Water Act: Significant Developments”).
The actual guidance with respect to Maui came in the final weeks of the Trump Administration. The Maui case was long debated and focused on treated wastewater discharged into an injection well that eventually discharged in the Pacific Ocean. For more information, see “Regulated Water: A New Rule, A Supreme Court Ruling and Politics.”
NWPR and Maui Reversal Provide Clean Slate
The United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers announced on June 9, 2021 their intent to revise the definition of Waters of the United States (see Federal Register Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules). Add to that the rescinding of the Maui Decision and you have some frustration in the regulated community.
In a matter of weeks, eliminated are a regulation and guidance relating to defining regulated waters. These changes provide the Biden Administration a clean slate to, once again, define regulated waters.
EPA’s Decision on Maui
Below is an excerpt from a memo that Radhika Fox, EPA Assistant Administrator sent to all Water Division Directors within the EPA regarding the rescinding of the Maui guidance:
“After careful consideration, the U.S. Environmental Protection Agency’s (EPA) Office of Water is rescinding the guidance document, titled ‘Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program,’ which was signed on January 14, 2021. 86 Fed. Reg. 6,321 (Jan. 21, 2021). The decision to rescind the guidance is informed by input from the agency workgroup established to evaluate the guidance, as well as by meetings with a broad range of stakeholders. It is also consistent with Executive Order 13990, ‘Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.’ 86 Fed. Reg. 7037 (Jan. 25, 2021).”
Is this a water of the US? The Biden Administration goes back to the drawing board to attempt to answer this question (Image by Olga MUJIC from Pixabay).
Reactions to the Decision
Below are some comments in support and opposition of the recent decision:
“The EPA’s decision was expected, but now the scope of federal jurisdiction over the agency’s dredge-and-fill and National Pollutant Discharge Elimination System permitting programs is unclear” – David Buente, Sidley Austin LLP.
“We’re grateful the Biden EPA has restored key protections to make sure polluters don’t inject their pollution underground to avoid the Clean Water Act’s safeguards for our lakes, rivers and oceans” – Brett Hartl, Government Affairs Director, Center for Biological Diversity.
“I thought the Maui guidance was fairly uncontroversial. The Trump-era guidance clearly said a discharge must occur, and that reflects the language of the Clean Water Act…What concerns me—they felt the need to rescind these statements…In the past at AFB, we had to sue EPA twice when they tried to force farmers to get permits when there was no discharge. I’m hoping this does not signal they’re going back to the bad old days.” – Travis Cushman, Senior Counsel for Public Policy, American Farm Bureau.
There are plenty of strong opinions regarding these recent decisions and we fully expect legal challenges in the coming weeks.
Uncertainty
The EPA and environmental groups believe this action will help protect water quality in lakes, streams, and wetlands. Regulated entities are concerned about how this will affect future permitting policy and their ability to expand operations. The only thing it does in the short term is create more uncertainty and uncertainty is never good for business.
If you need help with an environmental issue, you can reach us at info@dragun.com or call our office at 248-932-0228. You can also contact our Senior Vice President, Jeffrey Bolin, M.S. at extension 125.
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