Another Ruling that Discharges to Groundwater May Be Subject to the Clean Water Act

Last week, the 4th Circuit Court of Appeals – not the most liberal court in the land – joined the 9th Circuit in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act.  The decisions follow a number of district court cases to the same effect.  It’s hard to deny the trend at this point.   I’ve always been skeptical of these cases, largely because it’s fairly obvious that groundwater is not a “Water of the United States” and pretty much all groundwater discharges to surface water eventually, so it’s hard to know where CWA jurisdiction would end.  Nonetheless, I think that the 4th Circuit decision is the most persuasive argument I’ve seen to date, and I’m beginning to believe that the 4th and 9th Circuit position might actually survive Supreme Court review, though that’s by no means certain. A few points about the 4th Circuit decision are worth…

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