The Environmental Protection Agency has released final guidance for its regulators on factors to consider when deciding whether to require a permit for discharges from a point source that travel through groundwater before reaching a “water of the U.S.”

The agency made only minor changes to its draft guidance, which was issued in December and was subject to a 30-day comment period that ended Jan. 11. The final document was signed Jan 14. It was prepared to respond to a Supreme Court decision last year that said the Clean Water Act “require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

The court included seven factors that could apply to determine whether a discharge should require a permit, including — among others — “transit time” and the distance the pollutants travel, chemical dilution, and the amount of pollution that actually ends up in the waters.

EPA added an eighth — “the design and performance of the system or facility from which the pollutant is released.”

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Some of the comments received by EPA said the addition of that factor provides a “loophole” that would allow facilities to claim that a permit is not necessary because the system was designed to not discharge to navigable waters.

But EPA, responding to comments in a separate document, said the new factor “is potentially relevant and should be considered along with the court’s other non-exhaustive factors detailed in the guidance.”

Industry groups, including the National Cattlemen’s Beef Association, supported the draft; environmental groups were critical; it’s unclear where the Biden administration will come down on it.

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