EPA Rescinds Biden-Era Clean Water Act Guidance

On August 11, 2026, EPA’s Office of Water issued a memorandum titled, "Initial Review of EPA Office of Water Guidance Documents," rescinding the following Biden-era Clean Water Act (CWA) guidance:

• Policy memorandum to EPA Regional Water Division Directors, Regions 1-10, entitled, “Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs” (December 5, 2022). This guidance document outlined steps regulatory agencies could take to regulate PFAS in NPDES permits under existing regulatory authority, i.e., where EPA has not finalized PFAS effluent limitations guidelines and states have adopted few if any PFAS water quality standards. EPA indicated its rescission was based in part on certain states having “inappropriately conflated maximum contaminant levels under the Safe Drinking Water Act with separate Clean Water Act permitting requirements related to water quality standards,” and on the fact that the memorandum had been issued without public comment. EPA also rescinded an earlier version of the memorandum entitled “Addressing PFAS Discharges in EPA-Issued NPDES Permits and Expectations Where EPA is the Pretreatment Control Authority” (April 28, 2022).
• Fact Sheet entitled “Implementing Case-by-Case Technology-Based Effluent Limitations in NPDES Permits for Pollutants of Emerging Concern” (January 2025). This document followed from the December 5, 2022, PFAS guidance and advised states regarding implementing case-specific “best professional judgment” (BPJ) technology-based effluent limitations or “TBELs” for PFAS and other emerging contaminants in NPDES permits. EPA noted the guidance document was not adopted following public comment, had caused confusion, and resulted in inconsistent application across the country.
• Draft guidance entitled, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge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 to Discharges through Groundwater” (November 2023). This guidance document had been proposed by the Biden-era EPA in 2023 to implement the U.S. Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). The case created a multifactor, nonexclusive test for determining when a discharge from a point source to “waters of the United States” (WOTUS) that first travels through groundwater is the “functional equivalent of a direct discharge” to WOTUS, such that the discharge requires an NPDES permit. The 2023 draft guidance was pending before the OMB in January 2025 when the Trump administration took office and withdrew the draft guidance from OMB consideration. However, EPA did not officially rescind the draft guidance until the August 11, 2026, memorandum. The draft 2023 guidance had replaced a 2021 County of Maui guidance, issued by EPA under the first Trump administration, that had called out an additional factor that should be considered in making “functional equivalent” determinations. The extra factor was “the design and performance of the system or facility from which the pollutant is released,” which EPA indicated “can affect or inform all seven factors identified in Maui.” It is unclear whether EPA plans to issue new County of Maui guidance and, if so, whether EPA plans to reiterate this additional factor. Rescinding the 2023 draft guidance was appropriate, EPA indicated in its August 11, 2026, memorandum, both to prevent confusion and to comply with EPA’s 2019 Office of Water Policy that draft documents that have been issued must be finalized within two years of the draft date or will automatically be rescinded.
• Guidance entitled “Climate Change Considerations When Prioritizing, Developing, and Implementing Total Maximum Daily Loads” (TMDLs) (November 2024). This document provided guidance to states, territories and authorized tribes regarding approaches for incorporating climate change considerations into the process of prioritizing, developing, and implementing TMDLs. 
• Policy memorandum to Regional Water Division Directors entitled, “Environmental Justice Guidance for UIC Class VI Permitting and Primacy” (August 17, 2023). This memorandum encouraged states to consider environmental justice and climate issues in Underground Injection Control (UIC) Class VI permitting considerations, including siting decisions. EPA indicated that rescission is appropriate because the memorandum “does not align with recent Executive Orders and Administration priorities regarding environmental justice and energy dominance.”

Because EPA has rescinded the guidance documents, practitioners should not rely upon them in interacting with EPA and authorized state agencies. Nonetheless, some of the underlying legal principles summarized in the rescinded memorandums may still be relevant and applicable. For example, the rescission of EPA’s 2025 fact sheet on implementing case-by-case TBELs for pollutants of emerging concern does not affect the ability of permit writers to establish case-by-case TBELs under 40 CFR § 125.3(a)(2)(i)(B).

For more information or questions on the rescinded documents or on other water permitting issues, please contact Jeremy Greenhouse.