Where is the Pollution Coming From? Extending Clean Water Act Liability Under the Hydrological Connection Theory

Abstract

In 1972, Congress passed sweeping amendments to the Federal Water Pollution Control Act of 1948. Those amendments created what is known today as the Clean Water Act (CWA) which has fundamentally altered the way the United States protects federal waters. Importantly, the CWA mandates an absolute prohibition against the addition of any pollution to navigable waters from a point source. However, recent litigation over what constitutes “from” a point source has caused confusion. For example, if a polluter backs a point source away from a river so that the pollution first hits the ground before reaching the river—does the pollution come “from” that point source or “from” the ground? What if a polluter discharges their pollution from a point source into groundwater that is hydrologically connected to navigable waters—does the pollution come “from” that point source in the context of the CWA? Afterall, the regulation of groundwater is typically left to the individual States. This Paper addresses these tough questions by analyzing a recent circuit court split struggling to interpret the CWA. Ultimately, the answer lies in the CWA’s simple and zero-tolerance ban against any addition of pollutants. Water is one of our most precious natural resource and Congress acted intentionally when it drafted and passed the Clean Water Act in 1972. On its face, the CWA protects federal waters from any pollution—even when such pollution first travels through an intermediary.