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

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The Environmental Protection Agency (EPA) is issuing a draft memorandum to provide guidance to the regulated community and permitting authorities on applying the recent decision of the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), in the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) permit program for point source discharges that travel through groundwater before reaching waters of the United States. Consistent with EPA Guidance; Administrative Procedures for Issuance and Public Petitions, published in the Federal Register on October 19, 2020, EPA is soliciting public comments on the draft memorandum for thirty days. The Agency may pursue a future rulemaking action to provide greater regulatory certainty concerning discharges subject to the NPDES permit program. This draft guidance document does not have the force and effect of law and it does not bind the public in any way. By issuing this draft guidance memorandum, the Agency intends only to provide clarity to the public regarding existing requirements under the law or Agency policies.