Courts Hold Clean Water Act Regulates Discharges through Groundwater, as Congress and Regulators Consider Responses -

The Ninth Circuit and Fourth Circuit have joined a growing number of lower courts finding that the Clean Water Act (“CWA” or the “Act”) regulates discharges to groundwater that serves as a conduit between a point source and waters of the United States.

This is a critical issue for energy companies, whose operations can result in releases to groundwater through spills, accidental discharges, and seepage from ash and other retention ponds. Under the so-called “conduit” theory adopted in recent court decisions, these releases are subject to regulation under the CWA and can serve as the basis for citizen-suits when pollutants migrate through groundwater and reach jurisdictional surface waters.