December 27, 2018

The Clean (Ground)Water Act?

David Chung and Elizabeth B. Dawson

In the decades since the establishment of the NPDES program in 1972, litigants have debated the meaning of “discharge,” “pollutant,” “point source,” and “water of the United States.” And although EPA has taken the position that the CWA leaves groundwater regulation and nonpoint-source pollution control to the states, that has not stopped litigants from arguing that the federal CWA regulates discharges of pollutants to groundwater that ultimately reach waters of the United States. Indeed, EPA has also taken the position that in some circumstances federal permits may be required for such discharges when a direct hydrological connection between subsurface and surface waters is present. Cases involving such claims have considerably increased in recent years. In 2018, the Fourth, Sixth, and Ninth U.S. Circuit Courts of Appeals reached different conclusions on this issue. Not surprisingly, the issue is now the subject of pending petitions for certiorari in the U.S. Supreme Court.

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