Energy & Environment

EPA rescinds Trump guidance that created exceptions to water pollution protections 

The Environmental Protection Agency (EPA) is rescinding Trump-era guidance that established exceptions to certain water pollution protections.

The EPA announced this week that it was nixing the Jan. 14 guidance, which established exceptions to which types of facilities would require agency permits to discharge pollutants in accordance with a Supreme Court ruling.

Last year, the Supreme Court ruled that a permit is required not only for direct discharges of pollutants into federally regulated waters but also for discharges into groundwater that are the "functional equivalent" because they eventually also make their way into regulated waters. 

Following that decision, the EPA under then-President Trump issued the now-rescinded guidance stating that if the pollution became diluted or otherwise changed between when it was discharged and when it reached the regulated water, it may not require a permit. 

It also said that facilities are "less likely" to require permits if they're designed in a way that mitigates their discharges. 

In a memo getting rid of the guidance, the Biden administration argued that it had been issued "without proper deliberation" and because the part of the guidance relating to facility design is not "reflected in or consistent with" the Supreme Court ruling. 

The document, written by Radhika Fox, who leads the agency's Office of Water, said that the EPA was evaluating its next steps and that the agency will make site-specific decisions on whether relevant discharges need permits. 

In December, when it released a draft of the guidance, the Trump administration argued that its decision would help industry understand when they need permits. 

But critics said at the time that it could end up leaving out facilities that ultimately pollute protected waters.

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