On its face, the Clean Water Act (“CWA”) applies only to “waters of the United States” and thus does not apply to isolated, non-tributary groundwater. Nevertheless, various federal courts—in particular federal judges in Western states—have become increasingly willing to find that discharges of pollution into groundwater are nevertheless subject to the CWA as long as there is a direct “hydrologic connection” between the groundwater and some body of surface water that is covered by the CWA.
The two factual scenarios in which this legal issue most commonly arises are: (1) discharge (either direct or through seepage) into groundwater that then travels to surface water subject to CWA regulation; or (2) discharge into isolated, unregulated bodies of surface water followed by contaminant transport through groundwater to some other body of surface water that is subject to CWA regulation. Not all courts agree, however, and some courts have continued to hold that discharges into groundwater are outside the scope of the CWA, even if there is a direct “hydrologic connection” between the groundwater in question and some protected body of surface water.
This presentation addresses the positions taken by various courts on this issue, highlights recent case law and current trends, and discusses some potential implications of this evolving body of case law for both groundwater professionals and their clients.
Michael Yoder is a partner in the Colorado office of Diamond McCarthy LLP, a boutique law firm that specializes in complex commercial and environmental litigation (especially in the bankruptcy context) and that has additional offices in New York, Los Angeles, and Texas. Michael is a graduate of Harvard Law School and Rice University, and is currently seeking a M.S. in Hydrology from the Colorado School of Mines.
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