The Groundwater Conduit Theory: Expanding the Scope of the CWA?

  • 11.29.2018

Special Counsel Rachel Jacobson and Senior Associate Sarah Judkins co-authored this article published in the American Bar Association Section of Environment, Energy, and Resources Water Resources newsletter.

Excerpt: The Clean Water Act (CWA) prohibits the discharge of any pollutant from a point source into navigable waters. 33 U.S.C. §§ 1311(a), 1362(12). However, a party that obtains a National Pollution Discharge Elimination System (NPDES) permit is exempt from the general prohibition on point source pollution so long as those discharges are in compliance with the NPDES permit limits. Id. § 1311(a). Although the meaning of “navigable waters” is the subject of multiple court cases—including a series of decisions by the US Supreme Court—and is currently undergoing regulatory review, the term has generally been limited to surface waters and wetlands. Read the full article.