ARTBA, Allies Comment on Draft EPA Permit Guidance

What happened: ARTBA and its allies Dec. 27 commented on the Environmental Protection Agency (EPA) draft guidance that applies the Supreme Court’s decision in the County of Maui, Hawaii vs. Hawaii Wildlife Fund case to national Clean Water Act (CWA) permits.

Why it matters: In the Maui case, citizens sued the County of Maui for violating the CWA, arguing that the county failed to obtain proper permits for “discharges” seeping into groundwater and the Pacific Ocean. While the court did not rule permits were necessary, it did find that only those discharges directly into a navigable water – or the functional equivalent of a direct discharge – require special permits.

The case matters for transportation construction because discharges of pollutants from projects are sometimes unavoidable. EPA’s latest guidance is unclear, doesn’t properly interpret or implement the Court’s Maui directive, fails to account for several important factors when deciding whether a discharge requires a special permit, and may unlawfully expand EPA’s authority. ARTBA in 2021 supported a since-rescinded version of the guidance.

What’s next: EPA is reviewing the comments prior to issuing final guidance, but no timeline has been set. The ARTBA contact is Prianka Sharma.