In Part 1 of our Clean Water Act (CWA) Series, we reported on the circuit split between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to Waters of the United States (WOTUS) through groundwater required a CWA permit. On February 19, 2019, the Supreme Court agreed to hear arguments
Under the Clean Water Act
The Clean Water Act (CWA or the Act) expressly forbids the discharge of pollutants without a permit. The term “discharge of pollutants” means the “addition of any pollutant to navigable waters from any point source.” Any discharge of pollutants must be covered under a federal or state discharge permit (e.g., a U.S. Army Corps of Engineers permit for the discharge of dredged and fill material or a National Pollution Discharge Elimination System (NPDES) permit for the discharge of other pollutants); otherwise the discharge would be in violation of the CWA. If it does not constitute a discharge of pollutants, then the release does not violate the CWA.
A flurry of recent cases around the United States has created a circuit split over whether the CWA governs discharges to groundwater that eventually add pollutants to navigable waters. However, there are a few points these courts seem to agree on. …