EPA guidance may exempt some water polluters from Supreme Court permit mandate

The Environmental Protection Agency (EPA) on Tuesday released a draft guidance that interprets a Supreme Court decision in a way that may exempt some facilities from needing permits to pollute groundwater. 

In April, the court decided that a permit is required for both direct discharges of pollutants into federally-regulated rivers and oceans as well as their “functional equivalent” in groundwater that flows into regulated waters. 

The EPA’s new draft guidance, which was first reported by E&E News, says that whether a pollution discharge into groundwater should be considered a “functional equivalent” depends on “what happens to the discharged pollutant over that time and distance traveled” to the regulated body of water.

Specifically, it states that if the composition or concentration of pollutant that ultimately reaches the water is “different” from that which was originally discharged, it “might not” be considered a functional equivalent. 

It also states that some facilities may be “less likely” to require a permit if it uses a waste storage or treatment system rather than if it discharges pollutants “consistently and predictably” into groundwater.  

The agency argued that its guidance will help industry understand when they need permits. 

“EPA’s guidance will address several questions that the regulated community and others have raised since the Supreme Court issued its decision earlier this year,” said EPA assistant administrator for Water David Ross in a statement. “Understanding when … permits are needed is critical to the efficient administration of our Clean Water Act permitting programs.”

But critics argued that the guidelines could leave out facilities that may end up polluting the protected waters. 

“It basically suggests that a facility whose pollution is at all different at the point that it reaches the waterway, including just by being diluted might not need a pollution control permit,” said Jon Devine, the Natural Resources Defense Council’s director of federal water policy. 

“That strikes me as an invitation to gross abuse because if a pollutant is discharged into groundwater, it’s going to mix with the groundwater; it may be diluted by the groundwater, that doesn’t mean it’s any less likely to travel to and pollute surface waters,” he said. 

David Henkin, an attorney with Earthjustice who argued the Supreme Court case, said that the vagueness of the guidance would give the government a lot of discretion on how to apply it and said he thinks it would be more dangerous in the hands of the Trump administration than the Biden administration. 

“If this administration were implementing it … it would use this as a ‘get out of jail free’ card except in the most egregious situations,” Henkin said. “Any lengthening of the time to go from Point A to Point B through groundwater could exempt you from a permit and knowing the proclivities of this administration …mthat’s a pretty broad loophole.” 

Similarly, Devine said that different states, which have a big role in the permitting process, may choose to interpret the guidance differently. 

“It’s certainly written in a way that is vague and broad enough that a state that is less inclined to stringently enforce the clean water act can point to it and say ‘This is the guidance we’re getting from EPA.’” 

Before the guidance is finalized, it’s expected to undergo a 30-day comment period, not leaving a lot of time for finishing it up for publication in the Federal Register, leading some to be skeptical about whether it will actually be completed before Joe Biden is inaugurated. 

“This guidance won’t even be anywhere near getting finalized before the Trump administration’s out the revolving door,” Henkin said.