There has been much controversy in the courts as to whether groundwater can be defined as “navigable waters” under the Clean Water Act.  Courts are split on this decision, with equal numbers of rulings on both sides.  One case that has been highlighted in this debate is Tri Realty Co. v. Ursinus College.  In this case, a residential apartment complex owner claimed that Ursinus College’s underground storage tanks had leaked heating oil into the ground contaminated the soil on his property, and nearby Perkiomen Creek.  The owner filed a claim under the Oil Pollution Act (“OPA”) and said that the contaminated groundwater is “hydrologically connected to Perkiomen Creek and its tributary.”  The case went before the U.S. District Court for the Eastern District of Pennsylvania, where they ruled that the Clean Water Act and OPA don’t give federal authority over groundwater.  This ruling was based on the precedent set forth by Rapanos v. United States, which decided that “navigable waters” should not be broadly interpreted.  Therefore, the OPA claim was dismissed on the grounds that the owner failed to claim that the oil discharged into navigable waters because groundwater is not navigable water.

The EPA and the Army Corps created a draft proposed rule to redefine “waters of the United States” in an attempt to clarify the status of groundwater.  However, the draft proposed rule does not have a decisive resolution over the inclusion of groundwater in the definition.  The draft proposed rule’s preamble contains implications that groundwaters are not part of “waters of the United States,” with statements such as, “that nothing under this proposed rule would cause the shallow subsurface connections themselves to become jurisdictional.”  Contrastingly the draft proposed rule sets forth certain categories of water that have been identified as not “waters of the United States,” but groundwaters are not among those listed.  The draft proposed rule excludes groundwater that is drained through subsurface drainage systems, and this exclusion could support the inclusion of groundwater in the definition of “waters of the United States.”  The lack of clarity in the Clean Water Act and the draft proposed rule calls for a statutory change in the language of the Clean Water Act that clearly labels groundwater as part of “waters of the United States” or not.