The EPA’s interpretation that directly connected groundwater is within the scope of the CWA’s jurisdiction has been accepted with varying degrees of success among the federal district and circuit courts. Some courts have concluded that jurisdiction over such connected groundwater is warranted because (1) the CWA’s goal is to protect navigable waters, or (2) because the EPA is entitled to some level of deference on the issue. Other courts have decided that the CWA was simply not meant to cover groundwater, citing pieces of legislative history to support that position. A majority of courts have concluded that the CWA does cover connected groundwater, but the Supreme Court has yet to rule on the issue. This Note will explore the arguments that courts on both sides of the divide have accepted in concluding that groundwater hydrologically connected to navigable waters is or is not covered, the three potential theories for finding CWA jurisdiction over connected groundwater, what scientific factors courts have used in making case-specific determinations about whether hydrologically connected groundwater is covered, and alternative remedies that may be used to regulate or control pollution to groundwater under existing regulations.
Kvien, Allison L..
Is Groundwater that Is Hydrologically Connected to Navigable Waters Covered Under the CWA?: Three Theories of Coverage & Alternative Remedies for Groundwater Pollution.
Minnesota Journal of Law, Science & Technology.
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