EPA Finalizes the Maui Guidance
EPA quietly finalized the Maui Guidance this past week. I suspect the outgoing EPA administration was just too busy finalizing last-minute rules, policies and guidances to do more than the minimum. They're moving mountains as they head for the exit. A copy of the final is attached below.
I have not yet had a chance to read it in detail, but I understand that little has changed from the draft EPA released on Dec. 8 and which was published in the Fed. Reg. on December 10 with public comments due of Jan. 11. Here's a link to that notice. https://www.federalregister.gov/documents/2020/12/10/2020-27121/applying-the-supreme-courts-county-of-maui-v-hawaii-wildlife-fund-decision-in-the-clean-water-act
The Dec. 10 Fed. Reg. notice received 4,475 comments, which is a lot for a proposed guidance. Here's a link: https://beta.regulations.gov/docket/EPA-HQ-OW-2020-0673
The final was guidance was released on Jan. 13, just two days after the end of the public comment period. It's hard to believe EPA wrote in two days meaningful response to comments on 4,475 comments. As I wrote in my Dec. 8 blogpost, this guidance was thrown together in a hurry likely with little to no career staff input, and it shows in the sloppy reasoning that is, at times, inconsistent with the SCOTUS Maui decision. It will be interesting to see what the Biden administration does with it. Under the new guidance rule that EPA put out last year, the document can no long simply be retracted, so EPA will either have to go through public notice and comment rulemaking to withdraw it, or wait to get sued and take a voluntary remand. The folks in the Ariel Rios Building are going to be busy for awhile as they deal with this avalanche of last-minute rulemakings, not to mention the WOTUS rule, the 401 cert. rule . . . ..
The final Maui guidance is scheduled to be published in the Fed. Reg. on Jan. 21, 2021. Here's a link to the notice of availability of guidance: https://public-inspection.federalregister.gov/2021-01254.pdf
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