March 15, 2019

Muddying the (Ground) Water: When Does the CWA Apply?

Douglas J. Crouse

The Clean Water Act (CWA) prohibits unpermitted discharges of pollutants from “point sources” into “navigable water.” 33 U.S.C. § 1311(a). The definition of “navigable water” has been a long-standing subject of controversy among courts, commentators, and regulators. See, e.g., Rapanos v. United States, 547 U.S. 715 (2006) (plurality opinion). Despite this debate, the CWA has not regulated groundwater. The circuit courts that have addressed the issue are divided as to whether the CWA applies if groundwater discharges from point sources ultimately reach navigable waters.

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