Last Thursday, the U.S. Supreme Court held that the Clean Water Act (“CWA”) requires a permit to discharge pollutants that reach “navigable waters” through groundwater, but only if the discharge is the “functional equivalent of a direct discharge” to the navigable water.¹ In reaching this decision, the Court took the middle ground. It rejected both the Ninth Circuit’s interpretation that the CWA requires a source to obtain a permit whenever pollutants found in a navigable water are “fairly traceable” to that source, and arguments by Environmental Protection Agency (“EPA”) and others that a permit is never required for discharges of pollutants that reach a navigable water through groundwater.
Continue Reading Supreme Court Holds Clean Water Act Permit Required for Some Discharges to Groundwater