The Environmental Protection Agency (EPA) recently announced that it was seeking comment on whether discharges to groundwater which then migrate to jurisdictional waters should be regulated under the Clean Water Act. The notice came shortly after the Ninth Circuit held that pollutant discharges from wastewater wells that had seeped into groundwater and migrated to the Pacific Ocean required a Clean Water Act permit. In its ruling, the court found that the act applied whenever discharges to navigable waters were "fairly traceable" to groundwater discharges. Other recent district court decisions have been split on the issue, with some holding that states, not the Clean Water Act, regulate groundwater pollution.

The EPA had previously taken the position in an amicus brief with the Ninth Circuit that Clean Water Act jurisdiction extended to groundwater discharges with a "direct hydrological connection" to navigable waters. Given the difference of opinion among the lower courts, and with appeals before the Fourth and Sixth Circuits pending, the EPA is now asking whether its statements on the issue should be reconsidered. Specifically, the EPA is asking whether groundwater contamination is already adequately regulated under the Safe Drinking Water Act and state law and, if it chooses to maintain its past position, how it might define a direct hydrological connection.

For further information on this topic please contact Samuel B Boxerman or Jim Wedeking at Sidley Austin LLP by telephone (+1 202 736 8000) or email (sboxerman@sidley.com or jwedeking@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

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